CASE OF GODLEVSKIY v. RUSSIA
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1958 and lives in Oryol. At the material time the applicant was a journalist and editor-in-chief of the Orlovskiy Meridian newspaper, published by the Mir Novostey limited company. 7. On 21 March 2001 the applicant’s newspaper published his article “Tied in the system, or, Why are the generals waiting for the appointed hour?” (“В путах системы, или Почему генералы ждут часа «Ч»?”). The article was signed by his pen name Sergey Smirnov. The article told the readers about a criminal investigation opened by the regional prosecutor’s office into the activities of six (out of fourteen) officers from the regional anti-narcotics unit (ОБНОН УВД Орловской области). It was alleged that on several occasions the officers of the unit had unlawfully discontinued the criminal prosecution of drug-dealers who had agreed to “co-operate” with them and to share the profits from drug sales. 8. The article featured an interview with a former drug dealer, Ms V., who sold drugs under the unidentified officers’ “cover” for several years, until they “betrayed” her and she was arrested: “They apprehended me at a market when I was purchasing opium, [they] wrote down my contact details... Like many others, I had been paying them, and, ‘as a gesture of thanks’, they at first overlooked my buying and consuming drugs, [and] later my selling them... They said: here is a new drug, try it and describe the effect to us. It was heroin... I assure you that the police know every single [sale-purchase] point and every single dealer – in this sense they work very well [because] it brings them profit... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents. Also, they needed money all the time: once [they asked for money] to buy petrol for the police car... They set me up... Now I am in prison. There are only my kind here, because we cannot pay them off – our income from drug-dealing is barely sufficient for a ‘pay-off’ and our own dose. As to the dealers... I bear witness that all of them left the pre-trial detention facility...” 9. The article described the alleged wrongdoings of the anti-narcotics unit in general terms, without identifying any officers by name or rank: “The persons who are charged today do not admit their guilt. They claim that they have been slandered by drug addicts and are being avenged by the regional prosecutor’s office for the drug-related arrest of the prosecutor’s son in the past... Nevertheless, it is for the court to determine the matter – this is why I do not name any of the police officers. But one fact is indisputable: the extent to which drugs have spread in the Oryol Region is such that there is probably no way out. Taking into account that the duties of various state authorities are clearly demarcated, no matter what subterfuges you use, it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty.” 10. The article further stated that the officers charged had used drugs to pay for “information and services”: “The investigation found that, as a matter of course, some officers in the unit used drugs to pay for services and information. Question: where does a police officer get drugs from? Answer: part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal.” 11. The concluding paragraphs of the article explained its headline. A high-ranking general in the Russian security service once allegedly stated that the police knew all criminals and only waited for the appointed hour when the order would come to exterminate them. The article doubted the general’s illusion of omnipotence and expressed concern for the future of the Oryol Region. 12. On an unspecified date all fourteen officers of the Oryol Region anti-narcotics unit, including the six charged with drug-related offences, filed a civil defamation action. Without mentioning specific parts of the article, the officers asserted that the publication had damaged their honour, dignity and professional reputation and claimed compensation for non-pecuniary damage. The statements designated the editor’s office of the Orlovskiy Meridian newspaper and “the author of the article Sergey Smirnov” as co-defendants. One of the plaintiffs subsequently died. 13. On 18 June 2001 the Sovietskiy District Court of Oryol invited the plaintiffs to specify which extracts of the publication they believed to be damaging to their honour and reputation. Between mid-2001 and early 2002 the plaintiffs filed identically worded addenda to their original statements of claim, according to which the following expressions had damaged their reputation: “...I had been paying them...They said: here is a new drug, try it and describe the effect to us. It was heroin... I had to remember all of their birthdays – theirs, their wives’ and children’s. All of them expected presents... ...it is the police in particular who are responsible for the prosperity of drug-dealers in Oryol and, more specifically, the anti-narcotics unit. The anti-narcotics unit is also to be blamed for the deaths of 39 persons who died last year by overdose and for the easy access to drugs of each school student in Oryol. And also for the fact that drug-dealers are still at liberty... ...part [of the drugs] seized from drug addicts and drug dealers was retained, in contravention of all laws and regulations, for the needs of the police. And when such a dreadful weapon ends up in the hands of people who are not entirely morally upright, one can expect anything: drugs become a means of payment, a means of blackmail, and a threat to life... A police officer becomes a criminal...” 14. On an unspecified date the staff lawyer of the applicant’s newspaper commissioned a linguistic examination of the publication, which was carried out by a professor from Oryol State University who had a degree in language studies. His report pointed out that the publication had not referred to any police officer by name or otherwise and the blame had been placed on the state authorities as a whole and the Oryol Region anti-narcotics unit in particular. The expert concluded that none of the quoted extracts could be considered as damaging the honour or dignity of any specific person as an individual. 15. On 4 October 2002 the Sovietskiy District Court of Oryol delivered the judgment in the defamation action against the editor’s office of the Orlovskiy Meridian newspaper and the Mir Novostey company. The assessment of the damaging nature of the extracts was solely based on the statements by the plaintiffs and their relatives who claimed that the publication had been a cause of psychological anxiety. The court did not address the issue of whether the publication had targeted the plaintiffs. Nor did it distinguish between the author’s speech and the statements quoted as having been made by Ms V. in an interview. In the court’s opinion, the defendant failed to prove that the published information had been true on the date of its dissemination. Its findings were worded as follows: “The information designated by the plaintiffs was published in the Orlovskiy Meridian newspaper and contains statements to the effect that the Oryol Regional anti-narcotics unit is to be blamed for the prosperity of drug-dealers in Oryol, for the deaths of 39 individuals by overdose and for the fact that most dealers are still at liberty; that the officers of the anti-narcotics unit made use of drugs seized from drug addicts and drug-dealers and unlawfully retained them to meet the needs of the police in paying for information; that the officers of the anti-narcotics unit were paid off, that drug addicts knew their birthdays and those of their family members because they had to give them presents on these days, that they suggested to her that she test a new drug... The court considers that this information is damaging to the honour, dignity and professional reputation of [the 13 plaintiffs] as officers of the anti-narcotics unit, whose main duty is the fight against crime and, more specifically, against the unlawful trade in drugs... The plaintiffs have not been found guilty of any crime or offence in accordance with the legal procedure, and thus the information which is damaging to their honour, dignity and professional reputation is untrue and is subject to a rectification in the same media...” 16. The District Court ordered the newspaper to publish a rectification, the editor’s office to apologise to the plaintiffs and the Mir Novostey company to pay 5,000 Russian roubles (approximately EUR 200) to each of the plaintiffs. 17. In the statement of appeal, counsel for the Mir Novostey company submitted that the District Court had not given proper assessment to the fact that the publication had concerned a structural police unit rather than named individuals, that a criminal case was pending against several police officers, that other officers had been disciplined after the publication and that the director of the regional police had negatively appraised the performance of the anti-narcotics unit. 18. On 27 November 2002 the Oryol Regional Court examined the appeal and heard oral submissions by the applicant as the editor-in-chief, and counsel for the Mir Novostey company. It found as follows: “The [article in question] was published in March 2001, that is, before the criminal case, including the indictment bill, was submitted for trial. As of today, there has still been no conviction in the criminal case against [six plaintiffs]. The first-instance court has therefore correctly concluded that there was no proof of the truthfulness of the information contained in the publication and contested by the plaintiffs... The court considers that the negative appraisal of the performance of the anti-narcotics unit by the Oryol Regional police department, which followed publication of the article, cannot be a proof of the truthfulness of the information contested by the plaintiffs because in the present case the only such proof would be a court judgment. With regard to the foregoing, the court considers that... the appellant’s argument that the contested publication did not contain information on specific individuals, but only referred to a structural unit of the police, is not a valid ground to quash the judgment. Under Article 306 § 2 of the Russian Code of Civil Procedure, a judgment that is correct in substance need not be quashed merely because of formal defects.” 19. The Regional Court upheld the judgment of 4 October 2002 in substance. It also ordered that the newspaper should print the operative part of the judgment as the rectification, but it struck out the requirement to apologise to the plaintiffs on the ground that such a requirement had no basis in domestic law. 20. Article 29 guarantees 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 the rectification of statements (svedeniya) 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. 22. The Resolution (in force at the material time) provided that, in order to be considered damaging, statements had to be untrue and contain allegations of a breach 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 (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7). 23. If the defamation claim concerned information printed in a newspaper, the defendants were the author and the editor’s office of the newspaper. If the author’s name was not mentioned (for example, in an editorial), the editor’s office was the defendant. If the editor’s office had no legal personality, the newspaper’s founder was to be brought into the proceedings as the defendant (section 6). 24. On 20 December 2002 a deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review in a defamation action which had been originally granted by the Penza courts. The deputy President noted, in particular: “However, the courts did not take into account that one of the requirements of Article 152 of the Civil Code is that statements must refer to a particular person or a clearly identifiable group of persons...” On 7 February 2003 the Presidium of the Penza Regional Court granted the application and quashed the judgments in the defamation claim. The case eventually ended in a friendly settlement. 25. Section 2 defines the “editor’s office” as an organisation, institution, individual or group of individuals that produces and publishes a newspaper. The “editor-in-chief” means the person who is in charge of the editor’s office and who takes final decisions regarding production and publication of the newspaper. 26. The editor’s office is professionally independent. It may be registered as a legal entity, but this is not an obligation. The editor-in-chief acts for the editor’s office before the newspaper founder, publisher, distributor, individuals, groups of individuals, companies, institutions, organisations, State authorities and the courts. The editor-in-chief bears responsibility for compliance with the requirements of the Mass-Media Act and other laws of the Russian Federation (section 19). 27. A journalist has a duty to verify the truthfulness of the information he or she communicates (section 49 § 1 (2)), as well as a duty to inform the editor-in-chief of all potential actions or claims arising out of his or her publications (section 49 § 1 (7)). 28. Founders, editor’s officers, publishers, distributors, journalists and authors bear responsibility for violations of the Mass-Media Act (section 56). 29. Recommendation Rec(2003)13 of the Committee of Ministers to Member States on the provision of information through the media in relation to criminal proceedings reads, in the relevant parts, as follows: “...Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; ... Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation... Principle 1 - Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 - Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”