CASE OF BEZYMYANNYY v. RUSSIA
Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1950 and lives in Belgorod. 6. The applicant is a businessman and a former controlling shareholder of a private company OAO “Restoran Belgorod”. According to the applicant, in 1997 a number of third persons produced a fake sales contract in respect of his shares in the company, as well as a fake register of the shareholders. They then tried to gain control over the company. Thereafter the matter was brought before the domestic courts. 7. On 27 April 1998 the Oktyabrskiy District Court of Belgorod, presided by judge B., dismissed the applicant's action to have the sale annulled and the register of shareholders declared fake and illegal. The court refused to order a forensic examination of the evidence, including a copy of the register of shareholders and the registrar's book of records, which the applicant had claimed were fake, and having admitted and considered them, rejected the applicant's action as groundless. 8. On 10 September 1998 that judgment was upheld on appeal by the Belgorod Regional Court. 9. On 18 September 1998, at the applicant's request, a police investigator initiated criminal proceedings for fraud against a number of third persons. On 28 October 1998 the investigator ordered an expert examination of the documents which the applicant had claimed were fake in the proceedings presided over by judge B. 10. On 4 and 12 November 1998 the respective examinations were completed. They confirmed that the copy of the register of shareholders and the registrar's book of records had been tampered with and that some of the entries had been fraudulently deleted or altered. 11. It appears that on 22 November 2001 the criminal investigation was discontinued. 12. Thereafter the case was repeatedly suspended and resumed. 13. The latest decision to resume the proceedings was taken on 5 September 2002. The outcome of the investigation is unclear. 14. On 23 March 2000 the applicant wrote a letter to the Prosecutor of the Belgorod Region with a copy to the Prosecutor General of Russia, alleging that in the course of the proceedings in his case in 1998 judge B., “acting in the exercise of her duties, had committed a crime by delivering a deliberately unjust decision knowingly based on incorrect and sometimes even openly forged documentary evidence”. The letter set out the applicant's views on the circumstances of his case, referred to the outcome of forensic examinations carried out by the investigator in the criminal case and requested the responsible officials to bring criminal proceedings against judge B. 15. Identical letters were sent to the President of the Belgorod Regional Court and the head of the Judiciary Qualification Board on 12 May 2000. 16. In response to the letter of 23 March 2000, on an unspecified date the President of the Belgorod Regional Court and judge B. requested the Regional Prosecutor's office to bring criminal proceedings against the applicant for libel. 17. By decision of 6 April 2000 an investigator instituted proceedings against the applicant for libel. 18. On 27 September 2000 the applicant was questioned as a witness and stated that judge B. had received bribes. 19. On 18 May 2001 those proceedings were discontinued because of an amnesty law. 20. On an unspecified date judge B. sued the applicant for defamation, claiming 75,000 roubles (RUB - approximately 3,000 euros (EUR)) in damages and seeking an order for the retraction of the impugned statements. 21. By judgment of 7 June 2002 the Sverdlovskiy District Court of Belgorod granted the claims in full. The court noted that the judicial decision taken by judge B. remained in force and that the applicant had used all possible remedies against it by instituting appeal proceedings. Without examining the form or accuracy of the statements made by the applicant in his letter and having refused his requests for the admission of evidence, the court concluded that the applicant had defamed judge B. It ordered the applicant to send the Prosecutor General of Russia, the Prosecutors of Belgorod and the Belgorod Region, the President of the Belgorod Regional Court and the Judiciary Qualification Board of the Belgorod Region a letter retracting his previous allegations against judge B. The court also awarded judge B. RUB 75,000 (approximately EUR 3,000) in non-pecuniary damages. 22. On appeal, the applicant argued that the court had failed to examine whether his letter to the relevant authorities could constitute dissemination of information within the meaning of the applicable law, that the inaccuracy of his allegations had been presumed and he had been refused a chance to prove them and that the first instance court had failed to require from judge B. any proof of actual harm resulting from the letter. The applicant also objected to the use of the statements which he had made during the interview with the investigator of the libel case. 23. On appeal the Belgorod Regional Court reduced the award of damages to RUB 20,000 (approximately EUR 800) and upheld the rest of the judgment on 10 September 2002. 24. By a final decision of 18 November 2003 the Belgorod Regional Court rejected the applicant's action to annul the transfer of his property to a number of third persons. 25. By a judgment of 4 February 2003 the Oktyabrskiy District Court rejected his application to annul a lease agreement between the applicant and a certain commercial entity. 26. Article 33 of the Constitution of the Russian Federation provides that citizens of the Russian Federation have the right to apply in person, as well as to submit individual and collective applications, to state bodies and local government institutions. 27. Article 152 of the Civil Code of the Russian Federation provides that a citizen may apply to a court to have information damaging his or her honour, dignity or professional reputation retracted unless the person who disseminated such information proves its accuracy. In addition to retraction, the citizen may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information. 28. Section 2 of Resolution no. 11 of the Plenary Session of the Supreme Court of the Russian Federation of 18 August 1992 (as amended on 25 April 1995) “On certain issues arising during the examination by courts of action for the protection of the honour and dignity of citizens, and also the professional reputation of citizens and legal entities” defines damaging information as information which is inaccurate and contains assertions that a citizen has broken the law or transgressed moral principles as well as impairing the honour or dignity of a citizen or the professional reputation of a citizen or a legal entity. The dissemination of such information is understood as the publication or broadcasting of such statements or their inclusion in professional references, public speeches, applications to State officials or communication in other forms, including oral, to at least one another person. The communication of such information to the person whom it concerns cannot be considered as its dissemination. 29. Section 7 of the Resolution lays the burden of proof on the defendant to show that the information disseminated was accurate; the plaintiff must prove only that the defendant disseminated the information.