CHERNYSHEVA v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mrs Galina Ivanovna Chernysheva, is a Russian national, who was born in 1961 and lives in Kaliningrad. The applicant is a journalist writing for the Citizen («Гражданин») newspaper published by the Kaliningrad town administration. The applicant is represented before the Court by Mr Yu. Shitikov, a lawyer practising in Kaliningrad. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 April 2000 the applicant published an article under the headline “Evil Flat of Prosecutor Tkach” («Нехорошая квартира прокурора Ткача») in the Citizen. The article concerned a civil dispute between Mrs Tkach, the spouse of the prosecutor of the Moskovskiy district of Kaliningrad Mr Tkach, and Mr and Mrs Sh., her neighbours who lived in the attic, right above Mrs Tkach’s flat. In 1998 Mrs Tkach and Mr T., another neighbour, had sued Mr and Mrs Sh. for an injunction to stop unauthorised construction works in the attic. The first-instance court had dismissed the suit. However, the applicant continued, the appeal court quashed the judgment in the part concerning the claims of Mrs Tkach, but not the claims of Mr T., notwithstanding the fact that their claims had been identical. The applicant alleged that this was only possible after Mr M., a colleague of Mr Tkach and prosecutor of the Tsentralniy district, intervened in the proceedings. In the article the applicant critically described the new hearing on Mrs Tkach’s claims on 27 March 2000 and strongly disagreed with the court judgment made in favour of Mrs Tkach. The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff’s husband was a prosecutor. On 3 May 2000 the prosecutor Tkach filed an action against the applicant and the Citizen for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. The statement of claim was printed on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and signed “the prosecutor of the Moskovskiy district, senior justice advisor, V.N. Tkach”. It also bore the outgoing registration number of the prosecutor’s office. Mr Tkach argued as follows: “1. The said article puts a special emphasis on my actions, allegedly unworthy of a prosecutor; however, my professional activities and my position are in no way related to the essence of the judicial dispute in question: I was not a plaintiff in the dispute, [neither] as an individual nor as a prosecutor. ...No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion. No one has the right to invade my private life, I did not break the law living in my flat – neither as a prosecutor nor as an individual.” Mr Tkach also submitted: “In accordance with Article 43 of the Federal Law on Prosecutors in the Russian Federation verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of prosecutors’ offices. This law applies to all citizens without exception, including journalists, who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor’s hierarchical superior.” Mr Tkach explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat. He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours. On this ground he requested the court to declare that the following extracts from the applicant’s article had damaged his honour and his professional reputation of a prosecutor: “‘Every prosecutor has an evil flat of his own’. These words are not mine. This is what people say. You can think anything you want. But in our case the issue is that Mr and Mrs Tkach are dissatisfied with their housing conditions. They want an improvement. At the expense of their neighbours, Mr and Mrs Sh.” “Make way! The prosecutors’ couple comes.” “In order to satisfy [the claim of] Mr and Mrs Tkach and grant them [the right to use a part of the attic]... the administration of the Tsentralniy district will apparently have to: - build a new entrance into the flat of Mr and Mrs Sh., which had already existed when they moved in; - brick in the two doors leading into their rooms and cover the resulting wall with stucco and wallpaper; - convert two separate rooms into one with the only one entrance-exit through the kitchen.” “P.S. The prosecutor Tkach has a wonderful three-room flat, its total surface measures almost 100 square metres and the ceilings are three metres high.” [“«У каждого прокурора есть своя нехорошая квартира». Это не мои слова. Это – уже фольклор. Здесь можно думать всё, что угодно. Но в нашем случае речь идет о том, что Ткачи недовольны своими квартирными условиями. Они хотят их улучшить. За счет соседей Ш. Дорогу! Чета прокуроров идет! Чтобы удовлетворить Ткачей, отдав им пазуху... администрации Центрального района, видимо, придется: - перепланировать новый вход в квартиру Ш., который уже был, когда они вселялись; - заложить кирпичами две двери в их комнаты, образовавшуюся стену зашпаклевать, поклеить обои; - две их раздельные комнаты превратить в смежные, с единственным входом-выходом – в кухню. P.S. У прокурора Ткача прекрасная трехкомнатная квартира, общей площадью почти 100 кв. м, с трехметровыми потолками.”] The court accepted the defamation action and ordered a linguistic expert examination of the article at issue. On 18 August 2000 the acting prosecutor of the Kaliningrad Region (и.о. прокурора Калининградской области) issued to Mr Tkach the following power of attorney printed on the prosecutor’s office letterhead and sealed with the prosecutor’s office stamp: “[Hereby] the prosecutor’s office of the Kaliningrad Region represented by the acting prosecutor [Mr] Vyacheslav Fedorovich Chulkov authorises the prosecutor of the Moskovskiy district, [Mr] Vladimir Nikolayevich Tkach <...> to take part in civil proceedings before all judicial authorities, including [the action] for the protection of the honour and dignity of the prosecutor of the Moskovskiy district before the Tsentralniy District Court of Kaliningrad, having all rights granted by law to a plaintiff, defendant or third parties, [including the right] to withdraw the action in whole or in part, accept the claim, alter the subject of an action, conclude a friendly settlement, delegate the powers to an attorney (substitution), appeal against a court decision, obtain writs of execution, recover the awarded property or moneys, and sign all necessary documents on my behalf.” On the same day Mr Tkach submitted a new version of his action. It was drafted on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and the plaintiff was designated as “the prosecutor of the Moskovskiy district, senior justice advisor, Mr Tkach”. The statement of claim bore an outgoing registration number of the prosecutor’s office. In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor’s office of the Kaliningrad Region on 6 July 2000 in connection with the applicant’s article. According to Mr Tkach, the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue. Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation, place of residence and professional position. Mr Tkach asked for compensation for non-pecuniary damage to be transferred to the bank account of the prosecutor’s office of the Kaliningrad Region. As to the remainder, Mr Tkach repeated his initial claims, but he also added that the title of the article in question be declared untrue and damaging to his reputation. On 16 November 2000 the applicant published a new article under the title “Prosecutor Tkach and freedom of expression – 4 (the story continues)” («Прокурор Ткач и свобода слова – 4 (эпопея продолжается)»). The article related once again the story about the civil action brought by Mrs Tkach against her neighbours and alleged that only Mr Tkach’s intervention in his professional capacity had secured an award in favour of his spouse. The article also criticised Mr Chulkov’s decision to issue an official power of attorney to Mr Tkach for the protection of the latter’s personal interests. On 4 December 2000 Mr Tkach filed a new action against the applicant and her newspaper. The statement of claim was drafted on plain paper and contained no reference to Mr Tkach’s position or professional affiliation. Mr Tkach claimed that the following extracts in the article of 16 November had damaged his honour and reputation: “...the purpose of the claim [was] to prevent a reconstruction of the attic. Undertaken on legal grounds in accordance with a resolution of the head of the Tsentralniy district. The first attempt missed the target: the court did not grant the action. But when a subsequent action was filed and her husband – the prosecutor of the Moskovskiy District Mr Tkach – began to show up at the hearings, the judgment was made in [Mrs Tkach’s] favour... But here is the issue: had he been a pensioner, just like his neighbour, the action would have never been granted.” [“Смысл заявления – запретить реконструкцию чердака. Законно начатую согласно постановлению главы Центрального района. С первой попытки цель не была достигнута – суд не удовлетворил просьбу. Но когда был подан следующий иск и на заседаниях стал появляться ее муж – прокурор Московского района Ткач – решение вынесли в ее пользу... Но ведь суть в чем: если бы он был пенсионером, как его сосед, иск не был бы выигран.“] The applicant submits that between May and December 2000 Mr Tkach lodged in total six actions against her and the Citizen, of which four were lodged on behalf of the prosecutor’s office and the remaining two in Mr Tkach’s own name. On 19 December 2000 the applicant lodged a counterclaim against Mr Tkach. The applicant submitted that Mr Tkach’s statement “No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion” had violated her right to freedom of expression and claimed compensation for non-pecuniary damage. On 24 January 2001 Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor’s office without examination because he had already brought identical claims on his own behalf. On 26 January 2001 the Tsentralniy District Court of Kaliningrad, by an interim decision (определение), granted Mr Tkach’s request. According to the minutes of the court hearing of 26 January 2001, the applicant and her representative did not object to continuation of the proceedings on the basis of Mr Tkach’s statements of claim which he had lodged in his personal capacity. On 19 February 2001 the Tsentralniy District Court of Kaliningrad joined all actions and delivered a judgment. The court found that the contested extracts concerned the quality of Mr Tkach’s living conditions and his role in the civil proceedings. It scrutinised the judgments made in the civil action lodged by Mrs Tkach and the results of the inquiry of the prosecutor’s office (of 6 July 2000) and came to the conclusion that the facts related in the article were untrue. The court found no evidence that Mr Tkach, in his professional capacity, had exercised any undue influence on the courts. The court held: “Therefore, having examined the evidence and assessed the contents of the article as a whole, including its title ‘Evil Flat of Prosecutor Tkach’, and having regard to the fact how a reasonable member of the society would perceive this message, the court comes to the conclusion that the author’s account of the essence of the civil dispute and the author’s expressed opinion do not reflect the actual situation. The word sequences and semantic units in the text, designated by the plaintiff V.N.Tkach, fall within the ambit of the concept of ‘untrue information’. The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff, in particular, his professional reputation. Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted.” The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor’s office. For this reason the court approved Mr Tkach’s decision to withdraw the four actions which he had lodged on behalf of the prosecutor’s office. The court also accepted the applicant’s counterclaim and held that Mr Tkach’s statement challenged by the applicant encroached on the applicant’s protected journalistic rights. The court did not award compensation for non-pecuniary damage to either party. On 2 March 2001 the applicant appealed against the judgment. On the same day the prosecutor of the Tsentralniy district, Mr S. Myashin, lodged a prosecutor’s appeal (кассационный протест) in the interests of Mr Tkach. On 21 March 2001 the Kaliningrad Regional Court quashed the judgment of 19 February 2001 on procedural grounds and remitted the case for a new examination. On 24 August 2001 the Tsentralniy District Court of Kaliningrad delivered a new judgment in the matter. In substance, the court followed the reasoning of the judgment of 19 February 2001. The court noted that the judgment made by the district court on Mrs Tkach’s claim had been subsequently upheld by the Kaliningrad Regional Court on 7 July 2000 and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on 4 July 2000 that no violation had taken place. The Kaliningrad Regional prosecutor’s office and the Presidium of the Kaliningrad Regional Court refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated. The court observed that Mr Tkach’s official position was in no way related to the substance of the civil dispute in question; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court. Moreover, the first deputy mayor of Kaliningrad and the head of the Tsentralniy district administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours Sh. On the other hand, the court had regard to the overwhelming evidence showing that neighbours Sh. maintained the attic in a dilapidated state, flooded Mrs Tkach’s flat and refused access to the attic to housing maintenance workers. The court held that the information in the articles of 27 April and 16 November 2000 was untrue and damaging to the plaintiff’s honour and professional reputation and caused him non-pecuniary damage. It awarded Mr Tkach RUR 3,000 (EUR 114) payable jointly by the applicant and her newspaper. Having examined the applicant’s counterclaim against Mr Tkach, the court found that the statement of claim of 3 May 2000 had been indeed submitted on the prosecutor’s office stationary, yet it did not specifically mention that the claim had been lodged in the State or public interests. The court held that the contested statement should be interpreted as a private person’s position rather than as a prosecutor’s injunction. An application to a court for the protection of one’s rights containing arguments in support of the plaintiff’s cause cannot be held to infringe rights of others. Moreover, the court had regard to the decision of the district court of 26 January 2001 whereby the contested statement of claim had been left without examination. The applicant’s counterclaim was therefore dismissed. The court noted in the judgment that the representatives of the applicant, Messrs Stepanov and Zinovyev, did not attend after a break, on the second day of the hearing, despite having been duly informed of the time and place of the hearing agreed between the parties. The court observed that they failed to show any valid reasons for their absence, the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence. On 30 August 2001 the applicant appealed against the judgment. In her appeal the applicant submitted, in particular, that the judgment had been given without her or her representatives being present. She explained that the hearing had begun on Thursday, 23 August. At 5.45 p.m. the judge had announced a break. The applicant alleged that she had not been informed when the hearing would resume. On Monday, 27 August, the applicant’s representative arrived at the courtroom only to find that the judgment had been delivered on 24 August. In her appeal the applicant also challenged the merits of the judgment. On 10 October 2001 the Kaliningrad Regional Court upheld in substance the judgment of 24 August 2001. However, the court reduced the amount of the award to RUR 250 (EUR 9) for the applicant and to RUR 500 (EUR 18) for the Citizen. The court reasoned its decision to reduce the award as follows: “... the extent of the applicants’ liability for dissemination of untrue information is insignificant because the judicial dispute with Mr and Mrs Sh. concerning the attic had indeed taken place, and the dissemination of damaging and inaccurate information is a result of incorrect, erroneous evaluation of the circumstances of that dispute.” The court also found that the applicant and her representative had been duly notified that the hearing would resume at 10.30 a.m. on 24 August and their consent had been noted in the transcript of the hearing on 23 August. On 1 November 2001 and 6 February 2002 Mr Tkach sent a request to the Head of the Town Council (председатель городского Совета депутатов) to impose a disciplinary sanction on the editor-in-chief of the Citizen and the applicant herself with a view of their future dismissal. The sanction was to be imposed for dissemination of untrue information. On 18 April 2002 the first deputy prosecutor of the Kaliningrad Region, Mr Tyapyshev, sent a “request to remedy the violation” (представление об устранении нарушения) to the editor-in-chief of the applicant’s newspaper. The prosecutor requested, inter alia, a decision to apply disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district, Mr Tkach. On an unspecified date the applicant, her former representative Mr Stepanov and the editor-in-chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour, dignity and professional reputation and compensation for non-pecuniary damage. They submitted that at the oral hearing on 23 August 2001 in the Tsentralniy District Court of Kaliningrad and in his written submissions to that court Mr Tkach referred to them as “slanderers” who “badgered” him by publishing “ravings” about a non-existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed. On 17 April 2002 the Tsentralniy District Court of Kaliningrad granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR 250 (EUR 9) to each of the applicant and Mr Stepanov. On 5 June 2002 the Kaliningrad Regional Court upheld, on Mr Tkach’s appeal, the judgment of 17 April 2002. On 25 November 2002 the Presidium of the Kaliningrad Regional Court refused the application for supervisory review lodged by the acting prosecutor of the Kaliningrad Region against the judgment of 17 April 2002. On 12 November 2002 the Tsentralniy District Court of Kaliningrad granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of Kaliningrad and to the Head of the Town Council. In these letters Mr Tkach requested that the municipal officials stop the publication of “slanderous” articles in the newspaper owned by the town administration. The court ordered Mr Tkach to pay RUR 250 to the applicant. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media. Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for refutation of information (сведения) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of dissemination of such information. The Code of Civil Procedure of the RSFSR (in force at the material time) provided as follows: “A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens. The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court. The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge motions, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law. The prosecutor’s abandoning of a claim lodged for the protection of interests of another person does not impair that person’s right to have his case examined on the merits.”