CASE OF GRINBERG v. RUSSIA
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award
Christos Rozakis
8. The applicant was born in 1937 and lives in Ulyanovsk. 9. On 6 September 2002 the Guberniya newspaper published a piece written and signed by the applicant. The entire text of the piece, entitled “[My] statement” («Заявление»), read as follows: “The voting ballots were still being counted, but it was already clear that General V.A. Shamanov had been elected Governor of the Ulyanovsk Region. That very night he made the following verbatim statement: 'Let me tell you bluntly and frankly – the local press has to be dealt with thoroughly'. During his electoral campaign General [Shamanov] made many promises to the residents of Ulyanovsk. But, in my opinion, he has kept only one: [he is] 'waging war' against the independent press, against journalists. The judicial proceedings in Shamanov's action against the highly talented Ulyanovsk journalist Dyomochkin are still pending. But the criminal prosecution of a journalist is exceptional. Yulia Shelamydova, editor-in-chief of the Simbirskiye Izvestia newspaper, has been sentenced to one year of correctional labour. Let us leave aside the legal aspects of that case: the full text of the court judgment has not yet been published and I hope there will be many more judicial proceedings, not only in Ulyanovsk, but also in Moscow. But there is a moral dimension to this case. How can three robust men, of whom two are Generals and one is a Hero of Russia, wage a battle against a woman who is still a young girl! This brings to mind Shamanov's support for Colonel Budanov, who killed a 18-year-old [Chechen] girl. No shame and no scruples!” (“Еще шел подсчет голосов, но было уже ясно: губернатором Ульяновской области избран генерал Шаманов В.А. Этой же ночью он заявил буквально следующее: «С местной прессой, прямо и откровенно скажу, предстоит детально разобраться». Во время избирательной кампании генерал обещал ульяновцам много. Но выполнил, с моей точки зрения, только одно: «воюет» с независимой прессой, с журналистами. Еще продолжаются суды по иску Шаманова В.А. к талантливейшему журналисту – ульяновцу Демочкину Г.А. Но преследование журналиста в уголовном порядке – это уникальный случай. Юлия Шеламыдова – главный редактор газеты «Симбирские известия» - осуждена на год исправительно-трудовых работ. Оставим пока в стороне юридический аспект этого дела: еще не опубликован полный текст решения суда, по этому поводу будет, надеюсь, еще много судов, причем не только в Ульяновске, но и в Москве. Но есть моральный аспект в этом деле. Как могут три здоровых мужика, из которых два – генерала, в том числе один – даже герой России, «воевать» с женщиной, более того – с молоденькой девчонкой! Почему-то вспоминается поддержка Шамановым В.А. полковника Буданова, убившего 18-летнюю девушку. Ни стыда, ни совести!”) 10. On 10 September 2002 Mr Shamanov brought a civil defamation action against the applicant, the editor's office and the newspaper's founder – the Fund for Assistance to Disenfranchised Communities Goryachev-Fond (“the Fund”). He claimed that the assertion alleging that he had no shame and no scruples was untrue and damaging to his honour and reputation. He sought 500,000 roubles ((RUR), approximately 20,000 euros (EUR)) in compensation for non-pecuniary damage. 11. On 14 November 2002 the Leninskiy District Court of Ulyanovsk found for the plaintiff. The court held as follows: “In the article the author asserts that Shamanov, Governor of the Ulyanovsk Region, has no shame and no scruples. The very tenor of the article confirms that the contested statements contain precisely such an assertion. [The applicant's] assertion in this article that the plaintiff has no shame and no scruples is clearly damaging because it impairs his honour, dignity and professional reputation... The [applicant] did not produce before the court any evidence showing the truthfulness of that statement about the plaintiff...” The court ruled: “... the statement to the effect that the plaintiff has no shame and no scruples, published in [the applicant's] piece... [is] untrue and damaging to Shamanov's honour, dignity and professional reputation”. 12. The court held the Fund liable for RUR 5,000 (EUR 200) and the applicant liable for RUR 2,500 (EUR 100) in respect of non-pecuniary damage to the plaintiff. The Fund was also ordered to publish, by way of rectification, the operative part of the judgment. 13. The applicant and the Fund lodged an appeal. The applicant pointed out that the District Court had failed to distinguish “opinions” from “statements”. He submitted that his right to hold and impart opinions was guaranteed by Article 29 of the Russian Constitution and the contested statement was his personal assessment of Mr Shamanov's actions. Furthermore, he argued that the contested expression was an idiom in the Russian language, and was commonly used to give an ethical appraisal of a person's deeds. 14. On 24 December 2002 the Ulyanovsk Regional Court upheld the judgment of 14 November 2002. The court endorsed the conclusions of the first-instance court and added: “The arguments... about the court's confusion of the term 'opinions' and the term 'statements' (сведения) cannot be taken into account because [the applicant's] opinion had been printed in a public medium and from the moment of publication it became a statement.” 15. The applicant's subsequent attempts to initiate supervisory review proceedings proved unsuccessful. On 22 August 2003 the Supreme Court of the Russian Federation dismissed his application for the institution of supervisory-review proceedings. 16. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 17. 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. 18. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (“сведения”) had to be untrue and contain allegations of a breach, by a person or legal entity, of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements 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 (section 2). 19. Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the statements had indeed been disseminated by the defendant. The defendant was to prove that the disseminated statements had been true and accurate.