CASE OF OOO IZDATELSKIY TSENTR KVARTIRNYY RYAD v. RUSSIA
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. At the material time the applicant company was the publisher of Kvartirnyy Ryad, a newspaper specialising in coverage of the housing market in the Moscow area (“the newspaper”). 6. On 20 May 2004 the newspaper published an article by G. entitled “So sorry for the bird. The blue one” («А птичку жалко. Синюю» – “the article”). The article described a conflict situation concerning a large commonhold association, Bluebird (Синяя птица), which included eight blocks of flats in the south-west of Moscow. G. suggested in the article that a number of residents of the Bluebird flats had been affected by the alleged misuse of common areas, in particular attics in the blocks of flats and that T., the head of the commonhold association, had been behind the misuse. G. emphasised that T. was also the deputy head of a district council in Moscow and that he had declined to comment on the article’s contents prior to publication. The article asked T. and the local government questions pertaining to the misuse of the common areas. 7. The relevant parts of the article read as follows: “Residents of eight blocks of flats in Severnoe Butovo keep sending letters to the courts, the prosecutor’s office, the city administration and even President Putin to complain about the head of the “Bluebird” commonhold association, T., [w]ho has developed an indecently hasty business activity spitting in the face of the association’s Charter and a number of regional and federal laws. ... ... But T. has expressed his distrust in the commission elected by the general meeting and has appointed his own commission...as a result T. has managed to retain his position ... ... the commission was not elected, but appointed, which guaranteed the appointment of T. for a third term ... ... In sum, even though T. did not have the majority of the votes, he nonetheless managed to conclude the contract ... ... let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?” 8. On 28 May 2004 T. lodged a defamation claim against the applicant company and G. with the Presnenskiy District Court of Moscow (“the District Court”). The plaintiff alleged that the statements contained in the article damaged his honour, dignity and business reputation. The court received the statement of claim on 15 June 2004. 9. On 8 December 2004 the District Court examined and partially allowed the claim, referring to Article 152 of the Civil Code and Resolution no. 11 of the Plenary Supreme Court. It reasoned: “... the impugned statement: “... who [has] developed an indecently hasty business activity spitting in the face of the commonhold association’s Charter and a number of regional and federal laws” should be retracted [by the defendants] ... as during the judicial examination of the case the defendants failed to prove that T.’s actions were unlawful. The defendants, a third party and witnesses explained that an attic ... had been unlawfully rented out. The lease agreement had been unlawfully concluded by T. ... However, no evidence has been provided [by the defendants] to the court to prove that the plaintiff’s actions were unlawful or illegal or in violation of federal and regional law or the commonhold association’s Charter. Moreover, the issue of the lease of the attic ... was examined by the Zyuzinskiy District Court of Moscow. By the decision of the Zyuzinskiy District Court of Moscow of 19 May 2004 actions of the Bluebird commonhold association headed by T. were found to be in compliance with the law in force. As to the statements: “... the commission was not elected, but appointed, which guaranteed the appointment of T. for a third term ... In sum, even though T. did not have the majority of the votes, he nonetheless managed to conclude the contract ...” ... They are not to be retracted as they are not damaging to the honour and dignity of the plaintiff. ... as to the statement: “let’s ask one final question, which again pertains to T.: does a State official have the right to combine his official functions with a commercial business activity?” It should not be retracted either as ... the author of the article [G.] is asking a rhetorical question ...” 10. The District Court ordered the applicant company “to refute the statement [published] in the newspaper Kvartirnyy Ryad on 20 May 2004 ... that T. developed activities as the head of the “Bluebird” commonhold association, violating the association’s Charter as well as a whole range of laws of the capital area and federal law”. It also awarded T. non-pecuniary damages: 10,000 Russian roubles (RUB – approximately 270 euros) to be paid by the applicant company and RUB 8,000 to be paid by G. 11. The applicant company and G. appealed against the judgment to the Moscow City Court (“the City Court”). 12. On 4 May 2005 it upheld the judgment of 8 December 2004 in full, referring to Article 152 of the Civil Code and to Resolution no. 11 of the Plenary Supreme Court. It provided the following succinct reasoning: “The plaintiff has proven the fact that the contested statements were disseminated: he provided the court with an original issue of the newspaper of 20 May 2004 ... ... the court [of first instance] rightly held that the defendants had failed to prove the veracity of the disseminated statement ... that [the plaintiff] had developed an indecently hasty business activity spitting in the face of the association’s Charter and the law. At the same time, the court [justifiably] referred to the judgment of the Zyuzinskiy District Court of Moscow ... which found the actions of the commonhold association ... headed by T. to be in compliance with the law in force.” 13. On 25 July 2005 the City Court rejected a request by the applicant company for supervisory review. 14. On 13 October 2005 the enforcement proceedings were terminated by a bailiff as the judgment of 8 December 2004 had been enforced in full.