CASE OF OBUKHOVA v. RUSSIA
Violation of Art. 10;Non-pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1963 and lives in Yaroslavl. She is a journalist on the Zolotoye Koltso newspaper. 7. On 17 January 2003 the newspaper published an article by the applicant under the headline “A year later they impounded the car” («Через год арестовали автомобиль»). The article was prompted by the following letter written by a Ms P. and reproduced in italics in the opening passage of the article: “On 22 September 2001 my husband... had a traffic accident. Ms Galina Borisovna Baskova, a judge of the [Yaroslavl] regional court, crashed into his car... The traffic police officers did not find us responsible and we calmed down. But the following year we received by registered mail a statement of claim, requesting that Ms Baskova be compensated for damage in the amount of 75,000 roubles, and an order for a charge on our property and our car issued by a judge. We had not been informed of the hearing and we consider that our civil rights were violated as we were convicted in our absence. We feel that Ms Galina Borisovna Baskova is taking advantage of her office and connections in the judiciary”. 8. The article related the versions of the traffic accident by Judge Baskova (as described in her statement of claim), by traffic police officers, by Mr and Ms P. and by eyewitnesses. It concluded as follows: “So far the Zavolzhskiy District Court [of Yaroslavl] has held three hearings... The date of the next hearing is not fixed yet. Mr and Ms P. remember menacing words that Galina Borisovna [Baskova] uttered immediately after the traffic accident ‘You will buy me a new car anyway!’; they shudder but they will defend themselves to the very end.” 9. On 7 March 2003 Judge Baskova sued the newspaper, the applicant and Ms P. for defamation and refutation of untrue information contained in the statement “Baskova is taking advantage of her office and connections in the judiciary”. 10. On the same day Judge Baskova requested the court to order interim measures, and notably an interlocutory injunction on the newspaper to prevent publication of “any articles, letters or materials about the factual circumstances of the traffic accident of 22 September 2001, as well as about the court proceedings concerning that accident until they [had] finished”. 11. On the same day a judge of the Kirovskiy District Court of Yaroslavl issued a decision to indicate interim measures (определение об обеспечении иска). The decision endorsed the arguments put forward by Judge Baskova and read, in its entirety, as follows: “The plaintiff has referred to the following circumstances. The article ‘A year later they impounded the car’ (Zolotoye Koltso, no. 9, 17 January 2003) was published before a decision on the merits of her claim for damages against Mr P. had been issued, after the Zavolzhskiy District Court of Yaroslavl had suspended the proceedings on 9 December 2003 and commissioned a technical study at the defendant’s request. The article ends with the assertion that Mr and Ms P. ‘will defend themselves to the very end’. The plaintiff considers that further developments in the judicial proceedings – upon their resumption – may also be reported by the newspaper in such a manner as to confirm the damaging information and conclusion already disseminated by the author. [The plaintiff] considers that under these circumstances a failure to indicate interim measures can impede the enforcement of the judgment [in the defamation claim]: otherwise, alongside with publication of a rectification of the information damaging to her, the newspaper would be entitled to continue publications stating the opposite view, which would undermine the judicial protection of her impaired rights. Pursuant to Article 139 of the Civil [Procedure] Code of the Russian Federation, a court may, at a request of a party to the case, indicate interim measures if a failure to indicate them could impede the enforcement of a court judgment. Having regard to the above, I consider that Ms Baskova’s request is to be granted.” 12. The District Court issued – with immediate effect – an interlocutory injunction worded as follows: “To enjoin the editor’s office of the Zolotoye Koltso newspaper from publishing any articles, letters or other materials written by anyone, which relate the factual circumstances of the traffic accident on 22 September 2001 with the participation of Ms Galina Baskova, Mr P. and Mr K., or the circumstances of the judicial proceedings on Ms Galina Baskova’s claim for damages against Mr P. until such time as the present dispute has been resolved. To serve a copy of the injunction on the bailiffs’ service of the Kirov District of Yaroslavl, Ms P., the editor’s office of the Zolotoye Koltso newspaper, the newspaper’s reporter Ms Yelena Obukhova, and Mrs Galina Baskova.” 13. On 7 April 2003 the Yaroslavl Regional Court dismissed the appeal against the injunction, finding as follows: “The regional court considers that in the instant case a failure to indicate interim measures would impede not only the enforcement of the court judgment but also the examination of the [defamation] action. The arguments in the appeal to the effect that the [injunction] violated the defendant’s constitutional right to impart information cannot be taken into account as the prohibition only covers publication of materials concerning one specific traffic accident... Publication of materials about these facts before the judgment has been made would be contrary to the interests of the justice. The interim measures indicated by the court are proportionate”. 14. On 29 April 2003 the Kirovskiy District Court gave judgment in the defamation claim. It did not accept the argument by the newspaper’s lawyer that the contested statement was Ms P.’s subjective opinion which was evident from the introductory expression “we feel that”. The court considered it to be “the author’s allegation... about Ms Baskova’s using her office and connections... in the framework of lodging her claim and obtaining interim measures”. As the defendants could not prove the truthfulness of that statement, the court ordered publication of a rectification in the newspaper. On 26 June 2003 the Yaroslavl Regional Court upheld that judgment. 15. The Code of Civil Procedure provides as follows: “At the request of a party to the case, a judge or a court may indicate interim measures. Such measures may be indicated at any stage of the proceedings if a failure to indicate them could impede or make impossible the enforcement of the court judgment.” “1. Interim measures may include: ... (2) an injunction restraining the defendant from carrying out specific actions; ... When necessary, a judge or a court may indicate any other interim measures that correspond to the purposes described in Article 139 of the Code... ... 3. Interim measures must be proportionate to the plaintiff’s claims.” “3. ...If the claim has been granted, interim measures remain effective until the judgment has been enforced.”