CASE OF KRASULYA v. RUSSIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 10;Violation of Art. 6-1;Non-pecuniary damage - financial award
Christos Rozakis
6. The applicant was born in 1952 and lives in Stavropol. 7. The applicant is the editor-in-chief of a regional newspaper “Noviy Grazhdanskiy Mir”. On 4 January 2002 the newspaper published an editorial under the heading “Chernogorov stealthily approaches Stavropol. Thoughts about one decision of the town legislature.” (“Черногоров подбирается к Ставрополю. Размышления по поводу одного решения городской думы”). The article was signed with the pseudonym of V. Nikolayev. Mr Chernogorov was the governor of the Stavropol region and the applicant's competitor in the election to that office in 2000. 8. The article lamented the decision by a majority of members of the Stavropol town legislative body to change the procedure of appointment of the town's mayor: the mayor would no longer be elected by the town's residents, but appointed by the town legislature. The publication alleged that the decision had been taken under pressure from Mr Chernogorov: “[Members of the legislature] were requested [to make the decision] by the governor himself, who attended the session, accompanied by many of his advisors, to try to persuade those in attendance... From that moment on, each member of the legislature has been caught in a web of sale-and-purchase transactions. We can only speculate what wonders they will be promised by Chernogorov's representatives. One thing is sure, nobody will offer the legislators more than the governor himself... Each member of the legislature will get his share and consume it on the sly.” 9. The article concluded with a critical appraisal of the governor as politician and manager: “Having miraculously escaped defeat in the governor's election – only because the regional elites failed to reach an agreement and nominate a passable candidate – and having avoided, for the same reason, the formation of a powerful opposition in the regional legislature, our loud and ambitious, but completely incapable governor is about to lay his hands on [the town of Stavropol].” 10. On 5 February 2002 the prosecutor's office of the Stavropol Region granted the request of Governor Chernogorov and initiated criminal proceedings against the applicant for dissemination of defamatory statements in the mass-media (Article 129 § 2 of the Criminal Code). 11. On 6 March 2002 an investigator ordered a linguistic examination of the publication. The examination was performed on 18 March 2002 by Mr B., a professional journalist with degrees in language studies and law, teaching at the Language Studies and Journalism Department of Rostov State University. The expert came to the following conclusion: “General conclusion: The text of the article submitted for examination... conveys in a rather harsh and emotional form the author's opinion and his judgments on the role of the Stavropol Region's governor, Mr Chernogorov, in the forthcoming election of the Stavropol town mayor. The text does not contain any words or expressions that are insulting for the governor, with the exception of the controversial description 'incapable'.” 12. The expert admitted that certain sentences conveyed a negative attitude towards the managerial abilities of the governor; however, he asserted, the publication did not contain any allegations about violations of laws, including electoral laws, by the governor or any statements damaging his professional reputation. The expert also pointed out, referring to an academic article by the Krasnodar town prosecutor, that ideas, opinions and value-judgments were not subject to a court-ordered refutation for being untrue, and the aggrieved person should instead exercise his right to a reply in the same medium. 13. On an unspecified date the applicant was charged with criminal defamation involving an allegation about the commission of a serious crime (Article 129 § 3 of the Criminal Code) and with publicly insulting a State official in connection with the performance of his duties (Article 319 of the Criminal Code). The case was referred to a court. 14. Before the court the applicant pleaded not guilty. He maintained that the publication in question had not contained any statements of fact, which could be declared untrue. 15. Mr Chernogorov asserted that the statements in the publication to the effect that he had obtained a decision from the town legislature through bribes and that he had had a narrow escape at the 2000 election, as well as a reference to him as being “completely incapable”, were libellous and damaging to his honour, dignity and professional reputation. 16. The court heard evidence from three members of the Stavropol town legislature, who denied that they had been offered any goods or benefits by the governor in exchange for their consent to the mayor's appointment. The governor's advisors testified in the same vein. 17. On 12 September 2002 the Oktyabrskiy District Court of Stavropol delivered a judgment in the applicant's case. In the judgment the court rejected the conclusions of the linguistic examination of 18 March 2002 on the ground that the report was a “subjective appraisal” by Mr B. of the publication and, in addition, that it had not been shown that Rostov State University or Mr B. had had a licence to carry out linguistic examinations. The court substituted its own assessment of the article's contents: “The court considers that the article contains not judgments and assumptions, as asserted by the defence, but precisely statements of fact... because the article specifies when, where and under what circumstances the decision on amendments to the Stavropol town charter was made and what the result of the voting was. The use of the future tense and infinitives in the text of the article is the author's way of writing and it does not indicate that the discourse is about hypothetical future events...” 18. The court further held that it was not possible to establish who had been the author of the article. The prosecution had not proven that it had been written by the applicant. However, he was responsible for its publication in the newspaper of which he was the editor. 19. The court found as follows: “The disseminated defamatory statements damage the honour and dignity of the Stavropol Region's governor Chernogorov, undermine his professional reputation, and accuse him of a serious crime. The repeated statements that 'each member of the legislature has been caught in a web of sale-and-purchase transactions', that 'they will be promised wonders by Chernogorov's representatives', that 'nobody will offer the legislators more than the governor himself', and that each member of the legislature 'will get his share and consume it on the sly' accuse the governor Chernogorov of bribing the members of the legislature for adoption of a desired decision. The statements that each member of the legislature has been caught in 'a web of sale-and-purchase transactions' and each member of the legislature 'will get his share' accuse Mr Chernogorov of bribing each member of the legislature who took part in the adoption of the decision, that is of a serious criminal offence under Article 291 § 2 of the Criminal Code, repeatedly committed [emphasis in the original]. [The applicant's] statements that Mr Chernogorov 'has miraculously escaped defeat in the governor's election only because the regional elites failed to reach an agreement' and 'nominate a passable candidate' are also untrue, and [the applicant] knew that they were untrue. Being himself a candidate in the 2000 elections of the Stavropol Region's governor, [the applicant] could not be ignorant of the election results, in which Mr Chernogorov polled at least 20 per cent more votes than the other candidates... This result does not permit concluding that Mr Chernogorov has 'miraculously' won the elections. [The applicant] disseminated untrue statements that Mr Chernogorov's election as the Stavropol Region's governor had not been the product of an informed choice of a majority of the Region residents but had been brought about accidentally because of lack of consent between certain 'regional elites'. Those statements damage the reputation of the legitimately elected governor among the Region residents, denigrate and belittle his person. The court considers that [the applicant's] statement that 'our loud and ambitious, but completely incapable governor is about to lay his hands on [the town of Stavropol]' was also an untrue statement damaging Mr Chernogorov's honour and dignity and undermining his reputation. No one has ever established that Mr Chernogorov was incapable in the legal sense of this term. Moreover, as the Region residents re-elected Mr Chernogorov as the Stavropol Region's governor for a second term, it cannot be concluded that Mr Chernogorov is a 'completely incapable governor' in the sense of incapability to act.” 20. The court found the applicant guilty of defamation. However, the applicant was acquitted of publicly insulting a State official because, in the court's opinion, the publication did not contain cynical or obscene language in respect of the governor. 21. The applicant was given a suspended sentence of one year's imprisonment, conditional on six months' probation. 22. The applicant and his lawyer appealed against the conviction to the Stavropol Regional Court. Their grounds of appeal invoked, in particular, Article 10 of the Convention and referred to the special place of journalistic freedom in a democratic society and wider limits of criticism in respect of a public figure, which the Stavropol Region's governor undeniably was. The applicant's lawyer also complained about the first-instance court's refusal to accept the linguistic examination report on the pretext that the expert did not have the required licence, whilst domestic law did not provide for such a requirement. 23. On 31 October 2002 the Criminal Division of the Stavropol Regional Court upheld the judgment of 12 September 2002. The Regional Court did not address the applicability of Article 10 of the Convention or the first-instance court's decision not to admit the linguistic examination report in evidence. 24. Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of the mass-media. 25. Article 129 § 1 of the Criminal Code of the Russian Federation defines defamation as dissemination of information known to be untrue that damages the honour and dignity of another person or undermines the person's reputation. Article 129 § 2 provides that defamation disseminated in a public statement, publicly displayed work of art or in the mass-media is punishable by a fine and/or correctional work for a period of up to two years. Article 129 § 3 penalises defamation, involving an accusation against a person that he or she committed a serious or especially serious crime, by up to three years' imprisonment. 26. Article 57 § 1 of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 establishes that a person having technical knowledge may be commissioned to give an expert opinion in a criminal case. Pursuant to Article 195 § 2 a forensic expert study may be carried out by a State court expert or by any other expert having relevant technical knowledge.