CASE OF REZNIK v. RUSSIA
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković
5. The applicant was born in 1938 and lives in Moscow. He is a lawyer and President of the Moscow City Bar. 6. On 25 October 2003 Mr Khodorkovskiy, a co-owner of the Yukos company, was charged with criminal offences and placed in custody. On 27 October 2003 he was transferred to special-purpose remand centre IZ99/1 in Moscow operating under the authority of the Ministry of Justice of the Russian Federation (hereinafter “the remand centre”). 7. On 30 October 2003 a lawyer, Ms A., accepted to represent Mr Khodorkovskiy in the criminal proceedings. 8. On 11 November 2003 Ms A. visited her client in the remand centre. On leaving the centre, she was stopped by a prison inspector, Mr B., who accused her of carrying unauthorised material that Mr Khodorkovskiy had given her. 9. It appears from a personal inspection report (протокол личного досмотра) of the same date that Mr B. “examined the belongings and clothing of the lawyer, Ms A.” and seized two documents: a printed document concerning the case against Mr Khodorkovskiy’s co-defendant, and a torn handwritten note. The report was signed by Mr B., Ms A. and two prison officers who were present during the search. The parties agreed that one of them had been a man (Mr F.); the identity and sex of the second officer was in dispute: the Government claimed that it had been a woman, “L-va”; the applicant insisted that it had been a man, “L-vich”. 10. The investigators claimed that the note had contained instructions about exercising influence on witnesses and interfering with the investigation. On 22 December 2003 the Ministry of Justice asked the Moscow City Bar to disbar Ms A. for acting in breach of the law and the lawyers’ code of ethics. The applicant, as President of the Moscow City Bar, publicly criticised the request by the Ministry of Justice. 11. On 25 December 2003 the NTV channel invited the applicant and Mr Buksman, the Director of the Moscow Department of the Ministry of Justice, to the talk show, “The Country and the World” («Страна и мир»), for a discussion of the incident involving Ms A. The debate was broadcast live at about 10 p.m. 12. In the first few minutes of the discussion the applicant asked Mr Buksman about his view on the events and the grounds for making the request for disbarment. Mr Buksman did not give specific answers, stating that the issue was not within his competence. 13. The presenter then asked the applicant about the relationship between the Moscow City Bar and the Ministry of Justice, implying that it was rather strained. The applicant denied that any tension existed and added: “I have to say that we have now examined the matter of lawyer A. There was no attempt to pass any note from Mr Khodorkovskiy outside the remand centre. There were no grounds for carrying out a search (обыск) which, by the way, was performed by men who rummaged (шарили) about the body of the woman lawyer. Evidence obtained by criminal or unlawful means has no legal value. There is nothing, absolutely nothing, in Ms A.’s records that could warrant her disbarment.” 14. The presenter then gave the floor to Mr Buksman, who said that there existed a normal professional relationship between the Moscow City Bar and the Ministry of Justice. The show ended. 15. On 8 January 2004, remand prison IZ-99/1 and warders Mr B. and Mr F. lodged defamation claims against the applicant and the NTV television company with the Cheremushkinskiy District Court of Moscow. They claimed that the applicant had falsely stated that male officers had “rummaged” about Ms A.’s body and carried out a “search” on her, whereas they had merely “inspected” her documents. Since the domestic law made a distinction between a “search” (обыск) and an “inspection” (досмотр), the applicant’s statement amounted to an allegation of a breach of the Russian law that was false and damaging both to the professional reputation of the remand prison and to the honour and dignity of its officers. They sought a rectification and compensation in respect of non-pecuniary damage. 16. In the defamation proceedings the District Court heard many witnesses and, in particular, the warders of the remand prison who had taken part in the incident involving counsel A. One of them, Mr L-vich, testified as follows: “I received a phone call and I was invited to take part in the drafting of a report. When I arrived, Ms A., Mr B. and Mr F. were in the office. B. was drafting the report. A. snatched a piece of paper and began tearing it apart. We removed the document [from her], I signed the report and left.” 17. Ms A. described the way in which the documents had been removed from her: “I was subjected to a humiliating procedure, as a woman and as a lawyer. They took the materials of the defence away from me by force. How is it possible to take the materials, without touching me, while I was holding onto them? ... Could there be any contact, other than bodily contact, if I was clutching the materials to my chest and the prison employees were tearing them away from me? It was not just my hands that they touched. [They touched] the clothing that was covering my body.” 18. In the meantime, on 3 February 2004 the Council of the Moscow City Bar formally rejected the Ministry’s request for Ms A.’s disbarment. It found, in particular, that the inspection (досмотр) carried out on the person of Ms A. on 11 November 2003 and the seizure of her materials had been unlawful. 19. On 10 June 2004 the District Court gave judgment on the defamation claim, finding as follows: “It was established at the court hearing that on 25 December 2003 a televised discussion between ... Mr Buksman and the lawyer Mr Reznik had been broadcast live on the NTV channel. The presenters did not edit the text of the interventions by Mr Buksman or Mr Reznik ... Mr Buksman was connected with the presenter via a direct link, the defendant Mr Reznik was present in the studio. It can be seen from a video recording which the court examined ... that Mr Buksman and the defendant made statements of a controversial nature. The participants put questions to each other and replied to questions from the presenters. ... The court considers that the statements by the defendant [Mr Reznik] were simply an expression of his opinion on an event that had attracted public attention and was widely discussed at the time. During the show “The Country and the World” on 25 December 2003, a public official and a lawyer held a discussion in which they expressed different opinions on the same event. The statements by the defendant Mr Reznik were not offensive and did not damage the plaintiffs’ honour, dignity or professional reputation. The defendant, in his reply to the presenter’s question, did not mention either remand prison no. 1 or the plaintiffs F. and B. ... The plaintiff – remand prison no. 1 – alleged a violation of the rights of individuals rather than those of prison no. 1. ... In the instant case, the statements by the defendant, Mr Reznik, did not contain allegations about the plaintiff, remand prison no. 1, nor did Mr Reznik’s statements damage its reputation. It follows that the claims by remand prison no. 1 are unlawful and unjustified because the plaintiff seeks the rectification of allegations concerning its employees. The claims by the plaintiffs F. and B. are likewise unjustified because the statements by the defendant did not mention any names, still less the plaintiff’s names. Moreover, ... there was no mention of their place of work or place of residence, or of their appearance or characteristic features, their rank or their position; the discussion was not accompanied by any photographs or video footage of the plaintiffs; nor were their voices broadcast. It follows that the defendant’s statements did not contain any information damaging to the honour or dignity of Mr F. or Mr B. [The court rejects as] unfounded the arguments by remand prison no. 1 to the effect that the discussion was preceded by footage showing a building with its postal address, which could have enabled television viewers to recognise Matrosskaya Tishina remand prison no. 1. Neither Mr Buksman nor Mr Reznik mentioned remand prison no. 1 in their replies. Moreover, it was the NTV channel that decided to broadcast the footage featuring the building with its address at the beginning of the show, but the plaintiffs have lodged no defamation claim against the channel ... Having regard to the above-stated, the court finds that the claims are unjustified and must be rejected.” 20. The remand centre, Mr B., and Mr F., all lodged statements of appeal. 21. On 10 August 2004 the Moscow City Court quashed the District Court’s judgment and granted the defamation claims by all three plaintiffs, finding as follows: “... the conclusion of the [district] court to the effect that the statements made by the defendant in a live television show did not damage the reputation [of the plaintiffs] is not correct. The statements did damage the honour and dignity of the prison officers F. and B. and the professional reputation of remand prison no. 1 because they actually contained an accusation that the male prison officers had searched the female lawyer in a degrading manner. ... It can be seen from the statements by the witnesses Mr L-vich and Mr T., the personal inspection report, and the conclusions of the Qualifications Panel of the Moscow City Bar that the prison officers did not carry out a search on Ms A., contrary to what Mr Reznik alleged, but the [district] court did not take this fact into account ... The law distinguishes between the terms ‘inspection’ and ‘search’, and the defendant Mr Rezink, a professional lawyer, could not have been unaware of that distinction. Although he had at his disposal reliable information that the prison officers had carried out an inspection of Ms A.’s documents rather than searched her, he made untrue statements in a live television show ... Further, the [city] court cannot agree with the [district] court’s conclusion that the defendant [Mr Reznik] did not identify any of the plaintiffs by name ... That conclusion contradicted the operative part of the judgment, in which the [district] court found that the incident ... had taken place on the premises of remand prison no. 1 and concerned the removal of a note from Ms A. ... The NTV channel showed the building at 18 Matrosskaya Tishina Street, and the defendant Mr Reznik later made the contested statements. In those circumstances, the professional reputation of remand prison no. 1 had been undermined and it had standing to seek judicial protection from defamation. The plaintiffs F. and B., who were employees of the remand prison and who had taken part in the inspection of [Ms A.’s] papers ... also had standing to sue in defamation.” 22. The City Court ordered the applicant to pay 20 Russian roubles (RUB) to each of Mr B. and Mr F. in respect of compensation for non-pecuniary damage. The NTV channel was ordered to broadcast a rectification. 23. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media. 24. Article 152 provides that an individual may apply to a court with a request for the rectification of statements 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. A personal inspection (личный досмотр) or an inspection of personal belongings may be carried out with a view to uncovering instruments or objects of an administrative offence (Article 27.7 § 1 of the Code of Administrative Offices). Personal inspections must be carried out by a person of the same sex, in the presence of two attesting witnesses (понятые) of the same sex (Article 27.7 § 3). 26. A suspect in a criminal case may be subjected to a body search (личный обыск) (Article 93 of the Code of Criminal Procedure). Body searches must be carried out by a person of the same sex, in the presence of attesting witnesses (понятые) or specialists of the same sex (Article 184 § 3). 27. The Pre-Trial Detention Act (Law no. 103-FZ of 15 July 1995) established that, if there were grounds to suspect visitors of passing prohibited objects, substances or food, prison officers were entitled to carry out an inspection of their clothes and belongings upon their entry or exit from the prison premises (part 6 of section 34).