CASE OF ZAKHAROV v. RUSSIA
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
Christos Rozakis
7. The applicant was born in 1947 and lives in the Moscow Region. 8. On 17 July 2002 the applicant privately sent a complaint to the deputy Governor of the Moscow Region. He reported on usurpation of a plot of communal land, adjacent to a public street in Iksha, by the private person Ms V. The applicant alleged that Ms A., the head of the Iksha town council, not only had failed to stand up for the rights of other Iksha residents but actively contributed to making the usurpation possible. In particular, Ms A. had allegedly brought about premature retirement of a land surveyor who had objected to the usurpation; she had interfered with the activities of court bailiffs who had come to reclaim the usurped land; she had assisted V. in obtaining title to the land by adverse possession; and she had ostensibly made an exemption for V. from regulations prohibiting planting of vegetables in the protected areas. The letter concluded as follows: “Such outrageous conduct of the appointed (not elected!) head of the town council vis-à-vis the town residents, – in full view of everyone – discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head. I ask you to state your opinion on A.'s anti-social behaviour and assist [us] in returning the land plot into communal use, notwithstanding her opposition...” 9. On 27 September 2002 Ms A. lodged a civil action against the applicant for refutation of information damaging to her honour and dignity and compensation for non-pecuniary damage. She maintained that the applicant's letter had contained untrue facts and insulting value-judgments, which could have damaged her reputation in the eyes of her hierarchical superiors, thereby causing her non-pecuniary damage. 10. On 27 January 2003 the Dmitrov Town Court of the Moscow Region granted Ms A.'s defamation action, finding that the applicant had failed to prove the truthfulness of his allegations contained in the letter of 17 July 2002. Assessing the allegedly insulting value-judgments in the concluding paragraphs of the letter, the court held as follows: “In addition to failing to substantiate the said allegations with any proof, [the applicant] used expressions which, in their form and contents, are not appropriate in respect of an official, which the plaintiff is... Also, the court considers that the judgments used by the [applicant] in his letter – such as 'A. knows that by law protected areas may not be occupied, but ostensibly makes an exemption for V.', 'such outrageous conduct... discredits the power that appointed A. and sets an example of breaking the law with impunity provided that you can 'make a deal' with the council head', 'A.'s anti-social behaviour' – are not only untrue because the [applicant] failed to prove that these facts had occurred, but also insulting for the Town Council Head; this information, phrased as insults, damages dignity and honour of the plaintiff, and it was sent to a deputy Governor of the Moscow Region, which might have led to belittlement of the plaintiff's authority in the eyes of regional managers...” 11. The court bound the applicant to make a rectification by way of a letter to the deputy Governor of the Moscow Region and to pay 300 Russian roubles (EUR 10) to Ms A. for non-pecuniary damage. 12. The applicant lodged a statement of appeal, maintaining that his letter had stated his subjective view on the existing problem. 13. On 4 March 2003 the Moscow Regional Court partly upheld, on the applicant's appeal, the judgment of 27 January 2003. It did not analyse the truthfulness of the factual allegations and grounded its judgment on the three expressions quoted above in the last paragraph of the judgment of 27 January 2003. The appeal court struck down the obligation to send a rectification, but upheld the award in respect of non-pecuniary damage. 14. Article 29 guarantees freedom of ideas and expression. 15. Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies. 16. Article 152 provides that an individual may apply to a court with a request for the rectification of “statements” (“сведения”) 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. 17. Resolution no. 11 of the Plenary Supreme Court of 18 August 1992 “on certain issues that have arisen in the course of judicial examination of claims for the protection of honour and dignity of individuals, and professional reputation of individuals and legal entities” (as amended on 25 April 1995, in force at the material time) established that the notion “dissemination of information” employed in Article 152 of the Civil Code was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person. It specified, however, that “communication of such information to the person whom it concerned could not be treated as dissemination”.