CASE OF DYULDIN AND KISLOV v. RUSSIA
Violation of Art. 10
Christos Rozakis
7. The applicants were born in 1944 and 1948, and live in Penza. At the material time the first applicant was a trade-union leader, the second applicant a journalist. They also co-chaired the Penza Regional Voters' Association “Civic Unity” (Grazhdanskoye yedinstvo). 8. On 15 August 2000 the Co-ordination Council of the Penza Regional Voters' Association Civic Unity adopted at its meeting the draft text of an open letter, entitled “Media coverage of the reforms of President Putin in the Penza Region” (“Informatsionnoye obespecheniy reform Prezidenta V.V. Putina v Penzenskoy oblasti”). 9. On 16 August 2000 the text was discussed at a round table attended by the applicants, the editors-in-chief of local newspapers and journalists. The draft was amended and elaborated. The discussion concluded with the adoption of the open letter by the Co-ordination Council of Civic Unity and managers of the independent media in the Penza Region to the President of the Russian Federation, the Security Council of the Russian Federation, the Journalists' Union of Russia, the plenipotentiary representative of the President for the Volga Federal District, and the Minister for Press and Information of the Russian Federation. The open letter was signed by the applicants and four editors-in-chief. 10. On 24 August 2000 the Novaya birzhevaya gazeta newspaper published the open letter on its front page. The relevant extracts of the letter, translated from Russian, read as follows: “We (authors of the open letter) subscribe to various political views but are unanimous in our support of the President's drive to curb corruption in the country, bring order to the economy, and assert the rule of law and democratic standards in all sectors of society. We have gathered at the round table because of our common concern for the fate of the President's reforms in the Penza Region. The Penza Region is gradually transforming into a private holding controlled by Governor V. Bochkaryov and his close circle ... [emphasis added, see below] Today we (the independent media) embarrass the regional authorities because we openly disagree with the selfish and destructive policy of the governor and his team, we publish materials denouncing bribe-takers and officials who abuse their position ... Once again, as in early 1991 when the [Communist] Party's nomenclature feared their imminent dismissal, the regional authorities have started reprisals against the independent media. Journalists are subjected to threats and beatings, our publications are prohibited from being printed and distributed in the region ... On the other side – the independent media, whose attempts to stand for the rule of law, human rights, to talk about bringing order to the economy and to expose corruption are routinely suppressed by the governor and his acolytes ...” 11. The remainder of the open letter harshly criticised the Governor of the Penza Region personally and contained allegations of serious wrongdoings. 12. On 3 February 2001 twelve members of the Penza Regional Government lodged a civil action with the Leninskiy District Court of Penza for the protection of their honour, dignity and professional reputation and for compensation for non-pecuniary damage allegedly sustained as a result of the publication of the open letter. They named the applicants and other signatories to the letter, as well as the newspaper that published it, as co-defendants. 13. On 3 March 2001 the original plaintiffs were joined by fourteen other members of the Penza Regional Government with identical claims. 14. On 30 March 2001 one of the original plaintiffs, Mr D., withdrew his claim. Speaking to the Novaya birzhevaya gazeta newspaper, he described the proceedings as “an attempt to bring the media under control”. In April 2001 Mr D. was dismissed from his position in the Government. 15. The applicants brought a counterclaim against the plaintiffs, alleging that they had violated civil-service law in that they had used their official position to discredit and adversely affect the functioning of the Civic Unity association. The applicants claimed compensation for non-pecuniary damage allegedly caused by a violation of their rights and freedoms, in particular, the right to freedom of opinion guaranteed by the Constitution. 16. On 15 May 2001 the Leninskiy District Court of Penza gave judgment. It carried out at the outset a detailed analysis of federal and regional laws on the structure of the Penza Regional Government and reached the following conclusion on the plaintiffs' standing in the defamation suit: “... any State official in the Penza Region wields a certain power and authority that is essential to the performance of his functional duties; hence, he falls into the category of 'regional authority'. Considering that the 'regional authority' is made up of individuals, that is, State officials, the term 'regional authority' applies to each plaintiff who is, by virtue of his position, a State official in the Penza Region. The words 'the close circle of Governor Bochkaryov', 'the governor's acolytes', and 'the governor's team' used in the impugned publication are – in the court's opinion, and despite the defendants' and their representatives' assertions to the contrary – applicable to all State officials [working in] the executive body of the Penza Regional Government and, therefore, to the plaintiffs.” 17. The District Court then examined the truthfulness of the applicants' statements referring to the “destructive” policy of the governor's team. It found that the applicants had not used any “scientific methodology for a comprehensive assessment of the social and economic development of the region” for the preparation of the open letter and that their evaluation had been entirely based on their personal views. The court rejected the statement by Mr D. on the economic decline in the Penza Region in 2001 because he had been dismissed from the Government and therefore, in the court's opinion, he was on the defendants' side. The court concluded that the statements referring to the “selfish and destructive policy” were untrue. 18. Likewise, the District Court found no evidence to support the statements referring to the persecution of journalists in the Penza Region. It pointed out that one of the signatories, the editor-in-chief of a local newspaper, could not prove that an attack on one of his journalists had been politically motivated. In the court's opinion, the fact that certain members of the Government had put pressure on local officials to subscribe to the newspapers controlled by the governor to the detriment of all others was lawful and could not be interpreted as “prohibition on distribution”. 19. The District Court held that the extracts of the open letter bold-faced in the text above were not true and damaged the honour and dignity of the plaintiffs as the members of the Penza Regional Government. It ordered that all the plaintiffs be jointly compensated for non-pecuniary damage: the defendant newspaper was to pay 50,000 Russian roubles (RUR) and each of the applicants and four of their co-defendants was to pay RUR 2,500. The court also ordered the defendant newspaper to publish a rectification. 20. The District Court dismissed the applicants' counterclaim on the ground that the plaintiffs had exercised their right to a court and, therefore, had not violated any of the applicants' rights. 21. On 24 July 2001 the Penza Regional Court examined an appeal by the applicants and upheld the judgment of 15 May 2001. 22. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 23. Article 152 provides that an individual may apply to a court with a request for the rectification 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. 24. The Resolution (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 (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).