CASE OF ALEKSANDR KRUTOV v. RUSSIA
Violation of Article 10 - Freedom of expression -{General}
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1960 and lives in Saratov. 6. On 9 January 2003 the applicant published an article under the headline “The Political Scene in 2002: Old Faces and New Times” (Политические расклады 2002 года: старые лица и новые времена) in issue no. 1 (10) of the Nedelya Oblasti newspaper. The article examined the interplay of political groups in the Saratov Region and, in particular, the part played by the prosecutor's office of the Saratov Region and B., the Saratov Regional Prosecutor. 7. B. sued the applicant and the editorial board for defamation before the Kirovskiy District Court of Saratov. He claimed that the following extract from the article had damaged his honour, dignity and professional reputation: “Probably, only this [the political union between the town hall and the regional prosecutor's office] can account for the regional prosecutor's office's perseverance in instigating criminal proceedings against members of the regional government..., while at the same time shielding the serving officials of the town hall and the town legislature from criminal prosecution. For example, in the corruption-ridden case of the “Town Charity Fund for Health Care Support”, charges had been brought against only one member of the town legislature, Mr K[.], but shortly thereafter he was acquitted. And the mayor's close circle, headed by Mr A[.] in person, was spared responsibility. In gratitude for support the town hall started supplying the prosecutor's offices with 'gifts' in the form of foreign-made cars and furniture. As to the regional prosecutor Mr B[.], the town hall allocated to him under a 49-year lease agreement (!) a plot of land in the courtyard of the block of flats where he lives (allegedly for development).” 8. The District Court commissioned a linguistic examination of the impugned extract by four experts from Saratov State University. 9. On 12 September 2003 the panel of four experts returned their unanimous findings. In their assessment, the article did not give an appraisal of B.'s character, nor did it damage his honour or professional reputation. The publication might create the impression that the prosecutor's actions had been unseemly and cast doubt on the lawfulness of a lease agreement for such a long term and the validity of its purpose. However, these issues called for a legal rather than a linguistic examination. The experts concurred that the words “probably”, “only this can account for...” and “in gratitude for support” were expressions of the journalist's personal opinion rather than statements of fact. The author did not allege that prosecutor B. had received any benefits for his support of the town hall. The journalist merely supposed that the prosecutor had not been impartial and that criminal charges against officials had been brought selectively. 10. On 14 November 2003 the Kirovskiy District Court of Saratov gave judgment, finding against the applicant for the following reasons: 's article] the plaintiff Mr B. cannot be viewed as a private individual because in the public perception – having regard to the fact that the plaintiff is a public figure – the plaintiff is Mr B., the citizen who holds the office of the Saratov Regional Prosecutor and must observe higher standards in his personal and professional image and his daily actions. The court further considers that the term 'prosecutor's offices' employed in the article also referred to the plaintiff because, by virtue of his office, he is responsible for the operation of all the prosecutor's offices in the entire Saratov region. Having regard to the above, the court considers that the excerpt from the article at issue is nothing but statements (сведения) disseminated about the plaintiff that are damaging to his honour, dignity and professional reputation... The court does not consider proven the defendants' argument that they disseminated a journalist's opinion based on facts, because the author's opinion must not only be founded on specific statements, but must also not damage the plaintiff's reputation or honour and must not contain statements about the plaintiff's unlawful conduct. Since the purpose of expressing an opinion is to convey it to third parties, the form of its expression must exclude the possibility of misleading a reasonable third party as to whether such information is an opinion or a statement of fact. The court considers that in the present case the defendants have failed to meet these requirements and the statements contained in the article are statements of fact amenable to proof in judicial proceedings...” 11. The District Court noted that the underlying facts in the impugned excerpt were not disputed. Thus, criminal proceedings were indeed brought against certain members of the regional government, including the member of the town legislature K. Mr B. had received a plot of land under the conditions indicated by the applicant, and the Saratov town hall had put at the disposal of the prosecutor's offices, free of charge, a Hyundai car, six tables and nine filing cabinets. 12. However, in the District Court's view, the applicant had failed to show that the mayor's close circle had been “spared responsibility” and that furniture, a foreign-made car or a land plot had been offered “in gratitude for support”. 13. The District Court held that the entire extract had been defamatory, ordered the newspaper to publish a rectification, and recovered 5,000 Russian roubles each from the applicant and the newspaper. 14. On 19 December 2003 the Saratov Regional Court, on an appeal by the applicant, upheld the judgment. 15. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 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. 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 in the workplace or in everyday life, etc.). Dissemination of statements was understood to mean the publication of statements or their broadcasting, inclusion in professional references, public speeches or applications to State officials, and communication in other forms, including oral, to at least one other person (section 2). 18. Section 7 of the Resolution governed the distribution of the burden of proof in defamation cases. The plaintiff had to show that the statements had indeed been disseminated by the defendant. The defendant had to prove that the disseminated statements were true and accurate.