CASE OF NOVAYA GAZETA V VORONEZHE v. RUSSIA
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
4. On 2 April 2002 the Novaya Gazeta v Voronezhe newspaper (“the newspaper”) published an article by Mr E.P. entitled “Atomic Mayor” («Атомный мэр»). The article concerned abuses and irregularities allegedly committed by Mr S., the mayor of Novovoronezh, and by other municipal officials, including Mr B., a deputy head of administration and director of the economy and finance department, and Mr P., the chairman of the education committee. The article also mentioned certain private parties who supplied goods or performed services for the municipal authorities, including Mr F., a local businessman who did renovation work for Statefunded institutions. 5. The article quoted extensively from the Report on the Composite Audit of the Novovoronezh Town Administration, carried out by the Audit Department of the Ministry of Finance for the Voronezh Region from 13 November to 27 December 2001 (“the audit report”). 6. On 8 May 2002 Mr S., Mr B., Mr P. and Mr F. lodged an action for defamation against the applicant. They claimed that the following extracts from the article were untrue and damaging to their reputation: “... In autumn 2001 a group of campaigners in Novovoronezh collected signatures for a vote of no confidence in Vladimir S. They collected nearly three thousand signatures ...” [paragraph 4] “... For a long time the Novovoronezh town administration failed to transfer payments to the compulsory medical insurance fund. In the mayor's opinion, these transfers were not mandatory, but a commercial court decided otherwise. Thanks to S., in 2002 the town budget will lose a further twenty million [roubles] ...” [21] “... Mayor S. still adheres to the ideas of Socialism and Communism; not only once did he enter the ranks of the Communist Party of the Russian Federation ... occasionally he left its ranks ...” [23] “... [In addition to the budget, Novovoronezh has an off-budget fund. And a substantial one.] One would only wonder at the way the mayor and his faithful companion, comrade B., the head of the economy and finance department doubling as executive director of all funds, handled its assets ... Thus, thanks to the efforts of two prominent economists, the town lost an amount comparable to nearly one half of the annual budget ...” [34, 47] “The chairman of the education committee of the Novovoronezh administration, Mr P., did not produce any documents showing that these students came from needy or large families as he claimed ...” What kind of needy families were these if even Mr P., the chairman of the education committee, does not know them?” [57, 58] “Inquisitive readers would ask: why did Mr B. care so much about the military unit in the village of Boevo and the regional psychiatric hospital (let's recall the charitable contribution of 300,000 roubles made to the hospital)? And they would start looking for an answer. Is it not in military unit no. 51205 that the son of the aforementioned official is doing his military service? Is it not in the regional psychiatric hospital that a relation or a namesake of Mr B. has just undergone a medical examination in order to escape punishment for a serious criminal offence? ... [67-69] And what about the honest Mayor S.? He does not know, perhaps, about the tricks of his deputy? On the contrary. He does know and he even personally signs payment orders for the transfer of money to the State enterprise 'Voronezh regional clinical psychiatric hospital'...” [71, 72] “The thing is that the notion of competitions (tenders) for the provision of services for State-funded organisations ceased to exist in the town long ago. If our fair and Communist-minded mayor S. liked Mr P. (they have done much business together), he could have as much work as he liked. He could supply computers at 150,000 roubles a piece and feed children in kindergartens at inflated prices ...” [87] “... During the audit an estimate of the repair work actually performed in the town stadium was made up. The cost of the actual work done amounted to nearly 500,000 roubles. So, Mr S. and Mr F., where have the remaining 1,300,000 roubles gone? ...” [93] 7. On 10 and 11 September 2002 the Sovetskiy District Court of Voronezh (“the trial court”) took evidence from the parties. The plaintiffs produced judgments of commercial courts pursuant to which the amount of 26,927 Russian roubles (RUB) had been recovered from the Novovoronezh municipal authorities in respect of payments to the medical insurance funds. Mr S. also produced a document showing that he had been a member of the Communist Party since 1995 and never relinquished his membership. 8. The applicant had at its disposal ordinary copies of the audit report and the report of 22 November 2001 on the verification of the work done at the stadium and shooting gallery (“the stadium report”). Since ordinary copies, as opposed to certified copies, had no evidentiary value, the applicant asked the trial court to obtain the originals. The trial court refused the request because the applicant had not shown that it had attempted to obtain the originals itself. 9. Throughout October 2002 the applicant unsuccessfully sought to obtain the originals from the Audit Department of the Ministry of Finance for the Voronezh Region, the town department of the interior and the Voronezh Regional and Novovoronezh Town Prosecutors' Offices. 10. The applicant renewed its request for a court injunction requiring the relevant authorities to submit the original documents. 11. On 30 October 2002 the trial court refused the request, without citing any reasons in the text of the judgment. Mr S. withdrew his claim in the part concerning paragraph 4 of the article. 12. On the same day the trial court issued its judgment. It found that all the extracts contested by the plaintiffs had been untrue and damaging to their reputation. The trial court premised its findings on the following principles: “In such cases, pursuant to Article 152 of the Russian Civil Code, the defendant shall prove the truthfulness of the information disseminated, whilst the plaintiff is only required to show that the defendant disseminated the information. Not only assertions, but also conjectures shall be amenable to proof. Damaging conjectures which are shown to have been unfounded in a court hearing will give rise to an apology. Reliance on rumours, hearsay, opinions of anonymous experts, competent sources, etc. as the basis for the damaging information shall not relieve the defendant from the obligation to show its truthfulness...” 13. The trial court decided that paragraphs 93 and 94 of the article implied the embezzlement of funds by Mr S. and Mr F. However, it noted that the audit report assessed the total cost of work at RUB 1,850,000 and that the defendants failed to adduce any proof of embezzlement. 14. The trial court accepted Mr S.'s opinion that statements in paragraphs 21, 23, 47, 71, 72 and 87 of the article impaired his honour, dignity and reputation. In the trial court's view, it was incorrect to say that the town “would lose a further 20 million thanks to the mayor” because the payments had been mandatory anyway and, after they had been withheld for some time, a court had ordered their recovery in the same amount. The information on Mr S.'s “discontinuous” party membership was considered untrue because he showed that he had joined the Communist Party once and had not relinquished his membership ever since. The trial court held that in paragraph 47 the author wrongly blamed Mr S. and Mr B. for stopping the funding, because the structure of off-budget funds was regulated by federal government decision. Lastly, as to paragraph 87, the trial court determined that it conveyed an impression that dishonest men, acting under the mayor's patronage, had made a profit out of kindergartens, but the authors did not produce any evidence showing the truthfulness of that allegation. 15. As regards Mr B., the trial court held that paragraphs 34, 47 and 6769 of the article were untrue and damaging for his reputation because the defendants failed to prove that Mr B. had been the executive director of “all funds”, that a relation of his, especially a criminal, had been in hiding in the psychiatric hospital or had been treated there, and that he and Mr S. had misspent the town's budget. 16. The trial court accepted Mr P.'s view that the allegations of abuses in the selection of students and his personal involvement in them (paragraphs 57 and 58) had been insulting for him. 17. The judgment stated: “Thus, the court has concluded that the plaintiffs' claims are well-founded because the author and the editors tolerated the publication of an article that contained insulting and untrue statements... without bothering to check all the relevant facts. In accordance with the law... evidence should have been collected before the information was published and it is inappropriate to start collecting evidence after the article was published... Moreover, the plaintiffs have produced before the court a reply from the Novovoronezh prosecutor's office and a decision of the Novovoronezh police department refusing criminal prosecution in connection with the audit of certain financial matters in the education committee of Novovoronezh in 2000-2001.” 18. The trial court ordered the applicant to pay RUB 10,000 to Mr S., as well as RUB 5,000 to Mr B., Mr P. and Mr F., respectively, that is, RUB 25,000 in total, and also to publish an apology. 19. On 8 January 2003 the applicant filed a detailed appeal statement, claiming that the article had concerned an issue of public interest and that the plaintiffs, being “public figures” and State servants, should have been more tolerant to criticism than ordinary citizens. The article was largely founded on the audit report and the district court did not afford the applicant an opportunity to prove the truthfulness of any statements of fact as it refused their request to obtain original documents. Moreover, the trial court ordered the applicant to refute value judgments. The appeal statement read, in so far as relevant, as follows: “As regards the first document [...], [the trial court] referred to the fact that there was no need to request it because the case file contained a decision by the senior police officer of the Novovoronezh GOVD [main department of the interior] to institute a criminal investigation into the facts mentioned in the report by the KRU [the Audit Department]. As regards the second document [...], the [trial] court referred to the fact that [it had been stated] in the reply by the Novovoronezh GOVD to the editorial board's request to provide the document that the GOVD did not have the document in question as it had been forwarded to the Novovoronezh prosecutor's office, and that there was therefore no need to request it from the GOVD.” 20. On 6 February 2003 the Voronezh Regional Court upheld the judgment of 30 October 2002. It held that the applicant's arguments that the article had contained value judgments rather than statements of fact was “unsubstantiated”. The court reasoned, in so far as relevant, as follows: “The dissemination of the information that the plaintiffs seek to refute was proven before the [trial] court and has not been disputed by the respondent. Accordingly the newspaper was obliged to submit evidence before the [trial] court to prove the truthfulness of the information in question. However, no such evidence was presented before the [trial] court.” 21. On 20 June 2003 the applicant transferred RUB 25,000 to the bank account of the bailiffs' service in execution of the judgment of 30 October 2002. 22. The applicant published an apology in the 11 – 17 July 2003 issue of the newspaper retracting the information contained in the article. 23. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media. 24. Article 152 of the Civil Code of the Russian Federation of 30 November 1994 provides that an individual may seize a court with a request for the rectification 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 the dissemination of such information. The rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities. 25. Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992, as amended on 25 April 1995 (in force at the material time) provided in its Article 2 that to be considered damaging the information (сведения) had to be untrue and contain statements about an individual's or a legal entity's breach of the laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of information was understood as the publication of information or its broadcasting, its inclusion in professional references, public addresses, applications to State officials, as well as its communication in other forms, including orally, to at least one other person. Article 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff was to show that the information in question had been disseminated by the defendant. The defendant was to prove that the disseminated information was true and accurate.