CASE OF NOVAYA GAZETA AND BORODYANSKIY v. RUSSIA
Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The first applicant, Novaya Gazeta Editorial and Publishing House, is an autonomous non-governmental organisation registered under Russian law in Moscow on 24 June 1998. It edits and publishes a daily national newspaper with circulation of 500,000 copies under the name Novaya Gazeta. 6. The second applicant, Mr G. Borodyanskiy, was born in 1959 and lives in Omsk. He is one of the regional journalists of Novaya Gazeta in Omsk, Tomsk, and Tyumen Regions. 7. In 2006 Novaya Gazeta published a series of articles by the second applicant. 8. On 27 November 2006 the newspaper published in both its printed and online versions an article by the second applicant entitled ‘Personalities received loans’ («Кредиты выдали под лица») (“the article”). It concerned alleged irregularities in the issuance of large unpaid loans by Sberbank (Savings Bank). The text described several fraudulent schemes which were used to obtain up to 147,000,000 euros (EUR) in loans from Sberbank, and listed certain individuals allegedly involved in these schemes. Among others the article mentioned Mr R.M., a politician and businessman from Kazakhstan with significant business interests in agricultural production in Omsk Region. A brief update on the criminal inquiry into the alleged loan fraud concluded the article. 9. The article contained, in particular, the following four fragments: “[1] In this case the interests of an important politician – the President of the Agrarian Party of Kazakhstan, which is the second most influential party [in that country] after the Otan Party headed by Mr Nazarbayev [the President of Kazakhstan], [Mr R.M.], were involved. [2] In Omsk [Mr R.M.] controls the Kirovskiy Grain Elevator, the biggest flour producer in the Omsk Region, [limited liability company] M, a bread factory and dozens of successful enterprises. [3] It would be inconceivable for anyone to achieve such success in our region without the benevolence (благоволение) of the Governor [Mr P.] who has held senior public office in Kazakhstan for more than twenty years. And this biographical fact of [Mr P.], naturally, has linked the republic [of Kazakhstan] and the [Omsk] region ever closer with ‘fraternal bonds’. [4] The Kirovskiy Grain Elevator sent forged certificates to Sberbank confirming that different companies [had] grain which actually never existed. Those certificates were issued by its CEO, Ms Zh. According to the investigators, each certificate cost fifty to seventy thousand roubles. Loans were given on the basis of those certificates in the amount of half a billion roubles.” 10. On 11 December 2006 Mr P., the Governor of Omsk Region, lodged a libel action against the first and second applicants with the Kuybyshevskiy District Court of Omsk (the District Court). He sought recognition of statements about him as libellous, publication of a rectification in Novaya Gazeta, and 500,000 Russian roubles (RUB) in non-pecuniary damages. 11. The court proceedings started on 20 December 2006. 12. On 26 December 2006 the applicants were notified about the next hearing on 11 January 2007, which was subsequently adjourned to 15 January 2007. The applicants were notified of the change of date. 13. On 14 January 2007 the first applicant requested the trial court to adjourn the hearing by three more weeks in order to prepare its written comments on the lawsuit. 14. On 15 January 2007 the District Court refused to further adjourn the hearing, because the applicant newspaper did not advance any reasons why its representative could not appear for the hearing and why it did not submit its written comments on the lawsuit between 20 December 2006 and 15 January 2007. 15. The trial court held a hearing in the defendants’ absence and allowed Mr P.’s action in part. The relevant part of the judgment read as follows: “... In accordance with Article 23 of the Constitution protection of every citizen’s good name is guaranteed. Under Article 152 of the Civil Code an individual may apply to a court with a request for rectification of statements that are damaging to his honour, dignity or professional reputation if the person who disseminated such statements can not prove their truthfulness ...” The trial court also established that the statements about Mr P. (reproduced above in paragraph 9) were disseminated by the applicants in printed and online versions of Novaya Gazeta, and thus became known to an indeterminate number of readers. It continued: “... In consideration of defamation disputes the following must be established: whether the defendant had disseminated statements about the plaintiff, whether those statements were discrediting, and whether those statements were false. The statements about the plaintiff had been disseminated ...” The defendants did not present any evidence that Mr P. had engaged in activities aimed at providing certain businessmen and commercial organisations with privileges, or that he had in fact abused his powers to further certain individuals’ interests ... The author of the article referred to benevolence (благоволение) on the part of the Governor towards a renowned politician, the President of the Agrarian Party of Kazakhstan, [Mr R.M.] “Benevolence” is to be understood as good will, a favourable attitude, approval, expression of satisfaction, and gratitude ... The statement that “in our region ... the Governor”, by using his office, shows benevolence [or] approval of the actions of [Mr R.M.] in ‘control of the Kirovskiy Grain Elevator’, is not compatible with the office of a state official. These statements, taken in conjunction with other paragraphs of the article (about [Mr R.M.], about issuance of false certificates to procure loans), create a negative image of the plaintiff, and could generate scepticism as to the plaintiff’s compliance with the ethical principles expected of the head of the executive authority in the region ... [T]hese statements characterise the plaintiff’s actions as aimed at providing certain businessmen and commercial organisations with privileges, and as an abuse of his powers to further the interests of certain individuals ...” The trial court concluded that the statements were defamatory, and that rectification of the disseminated statements must be published in printed and online versions of Novaya Gazeta. It further stated: “... When determining the level of non-pecuniary damages the court considers the degree of distress caused to the plaintiff by the extent of the dissemination of false statements. The newspaper is distributed in nine regions of Russia and in two foreign countries. The article was also published on line ... [on a website] with at least 91,369 readers weekly ... Having regard to these circumstances, the court orders the defendants to pay RUB 60,000 [in compensation] ...” It addition to RUB 60,000 (EUR 1,623) in non-pecuniary damages the plaintiff was also awarded RUB 100 (EUR 2.5) in court fees, to be paid by the applicants jointly. 16. On 9 March 2007 the first applicant appealed, claiming, in particular, that the article contained value judgments not susceptible of proof and that the District Court had failed to duly notify it of the date and time of the hearing. According to the heading of the appeal statement, the second applicant was a co-defendant. 17. On 25 July 2007 the Omsk Regional Court, in the presence of the parties to the proceedings and hearing their statements, upheld the lower court’s judgment. It reasoned that the District Court had correctly concluded that the information in the article had tarnished the plaintiff’s reputation, and dismissed the first applicant’s description of it as a value judgment. The relevant part of the judgment read as follows: “The following claims in the defendants’ appeal are not justified: that the statements are not discrediting, that they may not be regarded as assertions, and that they are merely opinions, value judgments by the author and thus not susceptible of proof. The [trial] court rightly noted that the author of the article, by claiming that the Governor has “benevolence” towards [Mr. R.M.], alleged approval of [his] control over the Kirovskiy Grain Elevator ...” At the same time the Regional Court ruled that the statement in paragraph 4 of the article reproduced above was not defamatory, as it did not refer to any abuse of powers by Mr P. Further, it dismissed the first applicant’s claim that it had not been summoned to the district court hearing, stating that several notifications had in fact been sent to the defendants. 18. The Regional Court ruled in the final judgment that the first applicant was to publish a rectification of the statements contained in paragraphs 1-3 of the article reproduced above, and that the applicants were to pay Mr P. jointly RUB 60,100 in non-pecuniary damages and court fees. 19. Following this judgment, the first applicant published a rectification in the printed and online versions of Novaya Gazeta and paid Mr P. non-pecuniary damages and court fees. 20. Article 23 guarantees protection of private life, privacy of personal and family affairs, good name and honour. Article 29 protects freedom of thought and expression, together with freedom of the mass media. 21. Article 152 provides that an individual may apply to a court with a request for rectification of statements (сведения) that are damaging to his 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. The same rules are applicable in cases where the plaintiff is a legal entity. 22. The Supreme Court clarified to the lower courts that a defamation action may be allowed only if a defendant has disseminated statements about the plaintiff, if those statements are discrediting, and if those statements are false. It required the courts hearing defamation claims to distinguish between statements of facts, which can be checked for veracity, and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code since they are an expression of the defendant’s subjective opinion and views and cannot be checked for veracity.