CASE OF ANDRUSHKO v. RUSSIA
Violation of Art. 10
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1951 and lives in Omsk. 7. She stood as a candidate for the elections to the legislative assembly of the Omsk Region scheduled for 24 March 2002. One of her competitors was Mr K., a local businessman. 8. On 20 March 2002 thirty-nine minority shareholders and former employees of the local department store “Oktyabrskiy” asked the applicant to finance a campaign against Mr K., the majority shareholder of Oktyabrskiy and the chairman of its Board of Directors. 9. On the same day the applicant arranged for the printing of 1,500 copies of the following leaflet, drafted by the shareholders: “The Truth about K[.] We, shareholders of the Oktyabrskiy department store, have suffered from K[.] We are thirty-nine employees taken hostage by that voracious big wheel. K[.]: – depreciated our stock; – coerced us into selling the stock for a song, threatening us with dismissal; – forced thirty-nine employees to resign by not letting them work; – paid a miserable salary and often paid us with rotten groceries; – having ousted the shareholders by unlawful means, he has become the department store owner. For more than a year we have been fighting for our rights in courts and other instances. The law-enforcement agencies are still powerless. In Omsk and its region many people have suffered because of K[.]’s unlawful conduct; but everyone is silent and money does not smell. We, as victims of K[.]’s conduct, propose to write a book entitled ‘The story of K[.]’s dark fortune’. Let it include the story of everyone who has met that terrible man on his or her way and become his victim. His fortune was made from our tears. Do not taint yourself by supporting this man. Whatever he undertakes is damned: every spring the renovated city hall is flooded with sewage, and the Patriarch did not come to bless the Church on the left bank which had been built in breach of Orthodox canons. We have suffered much harassment, repression and many a misfortune because of this man. Do not trust his promises, they build on our sorrows and lack of rights. Voters! Sign your fair judgment of K[.]! Say ‘no!’ to the fortune made from the woes and tears of simple people. We are firmly convinced that a man who breaks the Law should not be a parliamentarian and lawmaker. On behalf of the shareholders: G. F[.], L. K[.], V. A[.]” (emphasis added)” 10. On 26 March 2002 the applicant was elected a member of the legislative assembly of the Omsk Region. 11. Mr K. challenged the election results before the Omsk Regional Court. In particular, he claimed that by publishing the leaflet the applicant had resorted to unlawful electoral campaigning. The parties to the proceedings were Mr K. and the electoral commission. The applicant was cited as a third party. 12. On 4 June 2002 the Omsk Regional Court rejected Mr K.’s application. It found that the leaflet had called on electors to vote against Mr K., which was a permissible form of electoral agitation. The publication of that leaflet had not breached the electoral laws. If Mr K. believed that the leaflet contained untrue information damaging to his honour and reputation, it was open to him to bring defamation proceedings. 13. Mr K. sued the applicant and the three signatories of the leaflet for defamation. He submitted that the italicised extracts above were untrue and that the leaflet had damaged his reputation and gravely affected the voters’ freedom of choice. He claimed compensation in respect of non-pecuniary damage. 14. The applicant produced her evidence, including the original leaflet bearing thirty-nine signatures, the decision to issue additional shares taken by the Board of Directors of the Oktyabrskiy department store under the chairmanship of Mr K., and an official document showing that the flooding of the ground floor of the city hall had been due to a construction defect which had subsequently been corrected. Several of the minority shareholders had given oral testimony to the court, confirming the information contained in the leaflet. 15. On 11 April 2003 the Kirovskiy District Court of Omsk allowed Mr K.’s claims, finding that the defendants had failed to prove the truthfulness of the contested extracts. 16. Firstly, the court referred to the judgment of the Omsk Regional Court of 4 June 2002. It found that it was bound by the finding contained in that judgment that the applicant had failed to prove the truthfulness of the statements in the leaflet. 17. The court further found as follows. (a) The decision approving the issue of 300,000 additional shares had been adopted by a general meeting of shareholders rather than by Mr K. personally. That decision had previously been found lawful by a court. Although Mr K. was a majority shareholder, the fact that he had a decisive vote in certain issues “did not imply the unlawfulness of the decisions taken. For that reason the accusation blaming Mr K. for the depreciation of the shares and the ousting of shareholders, as if it were unlawful conduct, was unsubstantiated. The defendants had failed to prove that Mr K. had acted unlawfully”. (b) It had not been shown that the depreciation had been the result of Mr K.’s conduct rather than of another cause. Moreover, the defendants had sold their shares for 800 to 1,000 roubles each. (c) That there had been compulsion to sell shares had not been established. Mr K., being the chairman of the Board of Directors, had suggested that shareholders should sell their shares at the price of 30 roubles each. There was no evidence that he had resorted to extortion, violence or threats of violence. (d) The allegation that Mr K. had “forced thirty-nine employees to resign by not letting them work” was also unsubstantiated. Mr K. had not personally signed any dismissals. The employees had resigned of their own free will and the resignations had been countersigned by the director general, Mr B. There had therefore been no causal link between Mr K.’s actions and the dismissals of the employees. (e) The defendants had failed to prove that Mr K. had been personally responsible for the payment of “a miserable salary”. The salary of the employees of the Oktyabrskiy department store had been comparable to the average salary in the region. Moreover, “the notion of a miserable salary [was] subjective and the fact that such a salary [had been] paid did not imply that it was a consequence of Mr K.’s conduct. The unlawfulness of his conduct had not been proved”. (f) The defendants had not submitted any evidence proving that shareholders had been ousted by unlawful methods or that Mr K. had obtained the ownership of the Oktyabrskiy department store unlawfully. (g) The allegation that “whatever [Mr K.] undertakes is damned” was a “violation”. The statement that the city hall was flooded every spring was untrue as additional construction works in the city hall had fixed the flooding problem. As to the statement about the church, the Prior of the church had confirmed that it had been built in compliance with Orthodox canons. Moreover, Mr K. had received a “letter of benediction” for its construction. 18. The District Court concluded as follows: “The leaflet was clearly intended for [electoral] campaigning and essentially purported to induce, and has induced, voters to take part in the election and vote against the candidate Mr K[.], which is not prohibited under election law. It has been established that [the applicant] was not the source of the information in the leaflet, or its author; she merely disseminated it. As to the words, expressions and statements about [Mr K.’s] property and fortune and the way it was made, they reflect the opinion and civic position of a micro-community of shareholders and former employees in respect of an existing dispute between them and the joint stock company of which Mr K[.] is one of the directors. A judicial dispute concerning these matters is pending before the Omsk Commercial Court ... As the court considers it proven that the dissemination of statements by the defendants has damaged Mr K[.]’s honour, dignity and professional reputation, it awards him 500 roubles against [the applicant] in compensation for non-pecuniary damage... The court takes into account the nature of the statements disseminated and the fact that the leaflet was signed not only by the defendants, but also by thirty-nine other persons, which substantially reduced the defendants’ liability for the nonpecuniary damage incurred by the plaintiff.” 19. In the operative part of the judgment the court cited the italicised statements in the leaflet and pronounced them untrue and defamatory. 20. The applicant appealed against the judgment. She submitted that the District Court had incorrectly considered itself bound by the judgment of 4 June 2002, which had concerned a dispute involving a different cause of action and different parties. It had concerned a dispute over the election results between Mr K. and the electoral commission; the applicant had been a third party to that dispute. The issues relating to defamation or compensation for non-pecuniary damage had not been examined in the judgment of 4 June 2002. The applicant further maintained that the defendants had submitted evidence proving the truthfulness of the contested allegations. In particular, the witnesses had confirmed that all the statements contained in the leaflet were true. The District Court’s findings had been contradictory. In particular, although the District Court had found that Mr K., being the majority shareholder of the Okrtyabrskiy department store, had influenced its policy, it had also found, conflictingly, that Mr K. had not been personally responsible for the impugned omissions. In conclusion, the applicant submitted that the judgment of 11 April 2003 had violated her right to impart opinions. 21. On 11 June 2003 the Omsk Regional Court upheld the judgment of 11 April 2003 on appeal. It held as follows: “The conclusions of the [District] Court are correct, as it can be seen from the contents of the entire contested text that the authors presented Mr K[.], a candidate for election to the legislative assembly of the Omsk Region and head of [the Oktyabrskiy department store] as disreputable, as someone who infringes the Law and moral principles, who builds his fortune unlawfully and who harasses the shareholders of the Oktyabrskiy department store in various ways ... The [District] Court allowed the claims as the defendants had not submitted evidence showing that the allegations contained in the leaflet were true. Moreover, the assessment of Mr K[.]’s personality was formulated in clearly insulting terms. ... ... the [District] Court correctly considered the finding made in the judgment of the Omsk Regional Court of 4 June 2002 that [the defendants] had failed to prove the truthfulness of the statements contained in the leaflet ... as evidence established by the courts ... [The applicant’s] arguments that the present case has a different cause of action and that the parties have different procedural status cannot warrant the re-establishment of a fact that has earlier been established by a court. As the Regional Court made an assessment of the truthfulness of the allegations contained in the leaflet, the courts are bound by that judgment ... in the determination of the present case. [The applicant’s] argument that ... the judgment violates citizens’ constitutional right to freedom of thought, speech and information is unfounded. The views of a citizen or a group of citizens on a certain issue, if they are distributed in written form, must be formulated in proper language. The expressions used in the leaflet, such as ‘voracious big wheel’, ‘that terrible man’, ‘his fortune was made from our tears’, ‘whatever he undertakes is damned’, ‘the story of K[.]’s dark fortune’ are clearly insulting, are formulated in cynical terms, give an assessment of the plaintiff’s personality and contradict the socially acceptable norms of conduct and religious principles ... The appeal must be dismissed because the [District Court] correctly assessed the evidence, rightly concluded that the statements in the leaflet were untrue and gave judgment in accordance with the substantive and procedural rules. However, the operative part of the judgment must be clarified. Since essentially the entire leaflet contains untrue statements damaging to Mr K[.]’s honour, dignity and professional reputation, the list of statements that were found to have been untrue must be deleted from the operative part. d untrue statements damaging to Mr K[.]’s honour, dignity and professional reputation set out in a deliberately insulting form, the degree of anguish experienced by the victim, the [Regional Court] considers it appropriate to increase, in accordance with Article 151 of the Civil Code, the award in respect of non-pecuniary damage to 5,000 roubles against [the applicant] and to 2,000 roubles against [the other defendants].” 22. The Federal Law of 19 September 1997 on Basic Guarantees of Citizens’ Electoral Rights and the Right to Participate in Referenda (no. 124-FZ, in force at the material time, hereafter “the Electoral Rights Act”) provides that election candidates may distribute agitation materials (section 41 § 1). 23. It is prohibited to abuse the freedom of the mass media, in particular, by encouraging social, racial, ethnic or religious hatred or enmity, by calling for the usurpation of power or forcible change of the constitutional foundations of the Russian Federation or breach of the territorial integrity of the Russian Federation, by advocating war or by abusing the freedom of the mass media in any other way (section 43 § 2). 24. Article 152 of the Civil Code 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. 25. Resolution No. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992 (amended on 25 April 1995 and 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 in the workplace or in everyday life, etc.). “Dissemination of statements” was understood as meaning the publication of statements or their broadcasting (section 2). The burden of proof was on the defendant to show that the disseminated statements were true and accurate (section 7). 26. Article 151 § 1 of the Civil Code provides that a court may award compensation for non-pecuniary damage to an individual who has incurred such damage as a consequence of acts that have violated his personal nonpecuniary rights. Article 150 lists, among other personal non-pecuniary rights, the dignity of a person and his/her honour, good name and professional reputation. 27. The amount of compensation for non-pecuniary damage depends on the degree of fault of the offender and other pertinent circumstances. The court must also take into account the degree of physical or mental suffering experienced by the victim (Article 151 § 2). T (Article 1101). 28. The circumstances established by a final judgment are binding on the courts. There is no need to establish those circumstances anew and they may not be contested in any future litigation by the same parties (Article 61 § 2 of the Code of Civil Procedure). 29. The court must decide on the claims made by the plaintiff. It may only decide on claims it has raised of its own motion where a federal law so provides (Article 196 § 3).