CASE OF GREBNEVA AND ALISIMCHIK v. RUSSIA
Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. Both applicants were born in 1943 and live in Vladivostok. 6. The first applicant is the editor of a weekly newspaper, Arsenyevskiye Vesti (Арсеньевские вести), and the second applicant is a journalist and columnist there. It has a circulation of 17,100. The newspaper is published and distributed in the Primorskiy Region. 7. In late 2003 during a campaign for elections to the national parliament, the State Duma, the newspaper published a number of satirical and parodic articles on the course of the campaign in the Primorskiy Region. They featured a Russian online cartoon character, a girl called Masyanya, who was very popular at the time, going from St Petersburg to Vladivostok as an election observer. 8. An article in issue no. 46 of the newspaper for 13-19 November 2003 contained a pretend interview with Masyanya, stating that on her arrival at Vladivostok Airport she had been attacked and injured by local prostitutes, who did not want outsiders competing with them and who had forced her to return to St Petersburg. Masyanya had had a particularly fierce fight with a certain Vasilinka, the director of an escort agency called Contact or Image! (агентство интимных услуг Контакт или имидж!). The article stated that Vasilinka had refused to make any comments. 9. In issue no. 47, dated 20-26 November 2003, in a column called “Nadezhda Alisimchik’s Hummock of View” (Кочка зрения Надежды Алисимчик) written by the second applicant, Arsenyevskiye Vesti published a pretend interview with Vasilinka. The article was headlined “Candidates must be known from the inside!” (Кандидатов нужно знать изнутри!). The relevant part read as follows: “Nonetheless, we managed to get in touch with Vasilinka, the director of the escort agency Contact or Image! for an interview and photograph. Vasilinka proved to be a dame with a touch of greed and was pulled by a free advert for her agency in our newspaper, although she warned us that she would not answer a single question about that ‘bitch’ Masyanya. ‘This ragtag bunch from St Petersburg has no reason to be here because my agency Contact or Image can handle the elections – all my girls are professionals, and I myself am a lawyer and have extensive working experience as a prosecutor. Sporadically, during elections, I run the Contact or Image escort agency in coordination with superior organisations. There is no conflict here – the clientele is the same, and there is no need to spend money on protection on the side. Besides, this is a good opportunity for the Contact or Image escort agency to study its clients from the inside, which is particularly important when working with candidates to the State Duma. This is, so to say, a governmental order, which, I think, is also supported by the President. Especially as it’s for extra income, and there’s no such thing as too much money, even when one is at liberty,’ Vasilinka told our newspaper. We asked this prostitute-werewolf to comment on the list of candidates to the State Duma for circuit no. 52 ...” 10. The article was followed by a list of candidates and Vasilinka’s comments on them, using slang words and expressions commonly used in the criminal underworld. Some candidates were described in more positive terms than others. To the left of the article was a picture of a female dressed in a one-dollar banknote. The figure’s left hand pointed in the direction of three handwritten letters which were reproduced in small type. The face on the figure, which had long, flowing hair, was a photograph of the then prosecutor of the Primorskiy Region, Mr V. 11. On 9 December 2003 Mr V., in a private prosecution, brought criminal proceedings against the applicants, under Article 130 § 2 of the Russian Criminal Code, before the Justice of the Peace of Circuit no. 27 in the Frunzenskiy District of Vladivostok (“the Justice of the Peace”). He alleged that the article headlined “Candidates must be known from the inside” and the picture published in issue no. 47 of Arsenyevskiye Vesti for 20-26 November 2003 had been highly insulting, had aimed at damaging his honour and human dignity and had ascribed negative characteristics to his personality in an indecent, cynical and defamatory manner. He pointed out, in particular, that there was no doubt that the article had referred to him as it had stated that the character Vasilinka, “was a lawyer herself and had extensive working experience as a prosecutor”. Mr V. further submitted that the article in question, and the comments in respect of the list of the candidates, had been written in slang words and expressions and had represented him as an immoral and corrupt “prostitute-werewolf”, thus clearly indicating the intention of the writers to humiliate and insult him. He also complained that the picture accompanying the article had been put together in an indecent manner, in breach of the established rules of behaviour and public morals. 12. By a judgment of 2 June 2004 the Justice of the Peace convicted the applicants as charged. The court noted in particular: “In issue no. 47 for 20-26 November 2003 in the column headlined “Nadezhda Alisimchik’s Hummock of View” the newspaper Arsenyevskiye Vesti published an article ‘Candidates must be known from the inside’ which was accompanied by a photographic collage showing a female body covered with a one-dollar banknote. The photographic collage shows the face of the claimant, the prosecutor of the Primorskiy Region, [Mr V.], portrayed with long hair. The article contains an interview with ‘Vasilinka’, the director of an escort agency and states that it was possible not only to get in touch with her, but also to obtain her photograph. The text of the article and the portrayal of the prosecutor of the Primorskiy Region, [Mr V.], as an immoral and corrupt ‘prostitute-werewolf’ in an indecent and insulting manner damage the claimant’s honour and dignity. The claimant’s representative has highlighted the insulting nature of the information published in the newspaper ... pointing out that the claimant is a public figure and often takes part in TV programmes; his photograph has been published on numerous occasions in the media, and [Mr V.’s] face is therefore well known to people in the Primorskiy Region. Having examined the photographic collage and the text of the article ... the use of the name ‘prostitute-werewolf Vasilinka’, the explanations of the claimant’s lawyer, who has insisted that the character’s name in the article and the surname of the prosecutor of the Primorskiy Region have the same root, and that the article states that the character is a lawyer by profession and has extensive working experience as a prosecutor, the court concludes that [the applicants] undertook deliberate actions which were insulting to [Mr V.], and which were committed publicly as [the insult was disseminated] in a newspaper, that is to say in the media. ... The applicants’ actions ...were intended to damage the honour and dignity and the professional reputation of the prosecutor of the Primorskiy Region, [Mr V.]...” 13. The court found the applicants guilty of aggravated insult as it had been published in the media, and fined each of them 30,000 Russian roubles (RUB) (approximately 860 euros (EUR)). 14. On 19 July 2004 the Frunzenskiy District Court of Vladivistok (“the District Court”) delivered its decision in the appeal proceedings. 15. At the hearing the applicants had contested the guilty verdict. The second applicant had stated that the article in question had been written as a parody of various negative social phenomena, especially corruption during the elections and the role of the law-enforcement agencies. The first applicant stated that the article had been misinterpreted and that it had in fact concerned violations committed by law-enforcement agencies during the election campaign. She also argued that the picture had not been related to the article, nor had it depicted the prosecutor of the Primorskiy Region. 16. The appellate court found it established that “[the applicants had] deliberately insulted” Mr V. when in issue no. 47 of Arsenyevskiye Vesti for 20-26 November 2003 they had in the column called “Nadezhda Alisimchik’s Hummock of View” published an article entitled “Candidates must be known from the inside!”, accompanied by a photographic collage representing a female body with the face of the prosecutor of the Primorskiy Region, the body having been covered with a one-dollar banknote. In the District Court’s opinion, “the text of the article and the photographic collage [were] of an insulting nature, ascribe[d] negative characteristics, expressed in an indecent manner, to Mr V.’s personality and damage[d] the honour and dignity of Mr V., the prosecutor of the Primorskiy Region, as a private individual and as an official”. 17. The appellate court observed, in particular, that the article had involved an interview with the director of an escort agency, “Vasilinka”, who “sporadically, during elections, [ran] the escort agency Contact or Image in coordination with superior organisations”, and that the article was followed by “director Vasilinka’s rating of the candidates”, using slang words and expressions on her behalf. The photographic collage had illustrated the text about “Vasilinka”, a “prostitute-werewolf”, who “herself is a lawyer and has extensive working experience as a prosecutor”. In the District Court’s opinion, “the said information [was] of an insulting nature, since it degrade[d] Mr V.’s honour and dignity”. In reaching that conclusion, the District Court “[took] into account the fact that the prosecutor of the Primorskiy Region, Mr V., [was] a public figure and his photograph [had] been published in the media on many occasions ...” 18. With reference to its findings, the appellate court concluded that the applicants “[had taken] deliberate actions which [had been] of an insulting nature in respect of Mr V. and were performed in public, as [the impugned information] was disseminated in the media”. In the District Court’s opinion, although Mr V.’s surname had not been mentioned in the article, the image which had illustrated the article had used a photograph of him. It had therefore been clear that information “of an insulting nature” had related to Mr V. The District Court observed that, “by virtue of his office, Mr V. [was] a public figure and readers [could] therefore easily understand that the photographic collage [showed] Mr V.; so that readers [were] not mistaken, the name of the character in the article, ‘Vasilinka’, [had] the same root as Mr V.’s surname, and the character [was] a lawyer by profession and has extensive working experience as a prosecutor”. 19. The District Court further held as follows: “The court cannot accept the defendants’ arguments that it has not been proven that [Mr V.] was insulted as, in the court’s opinion, it is the text of the article and the photographic collage that are themselves insulting. Judging by its location on the page and its composition, the said photographic collage accompanies the article headlined “Candidates must be known from the inside”. Besides, the text itself refers to the fact that the photographic collage represents that very ‘Vasilinka’ who is the character in the article. The article states ‘nonetheless we managed to get in touch with the director of the escort agency Contact or Image, Vasilinka, for an interview and a photograph. Vasilinka proved to be a dame with a touch of greed and was pulled by a free advert for her agency in our newspaper’. ...In the court’s opinion, the offence took place in the form of public speech in the media, [the applicants] acted deliberately, the related words ‘prostitute’ and ‘werewolf’ indicate an intention to humiliate, dishonour and disgrace the subject of the article and photographic collage and, in a figurative sense, portray condemnable and distinctly negative characteristics, which are seen by the public as well as the person to whom they are addressed as insulting. In the court’s opinion, representing the prosecutor of the Primorskiy Region as an immoral and corrupt ‘prostitute-werewolf’ is intended to ascribe distinctly negative characteristics to [Mr V.’s] personality in an indecent form.” 20. The appellate court concluded that the first-instance judgment had been well-founded and dismissed the applicants’ appeal. 21. By a decision of 30 August 2004 the Primorskiy Regional Court upheld the applicants’ conviction at final instance, endorsing the reasoning of the lower courts. 22. On 23 March 2005 a bailiff issued a writ of execution in respect of the first applicant, ordering her to pay the fine and an execution fee of RUB 2,200. 23. On 5 April 2005 the first applicant informed the bailiff that she was unable to pay the fine in one amount owing to a lack of funds. She requested that she be authorised to pay by instalments over six months. It appears that her request was refused and the first applicant had to borrow a part of the fine from the bank. According to the first applicant, she was able to pay back the money she borrowed six months later. 24. The second applicant was also unable to pay the total amount of the fine and execution fee in one amount. She paid in instalments by deductions from her wages until 28 February 2006.