THIRD SECTION

DECISION

Application no. 42982/08 Andrey Nikolayevich SAVELYEV against Russia

The European Court of Human Rights (Third Section), sitting on 21 May 2019 as a Chamber composed of:

Vincent A. De Gaetano, President, Georgios A. Serghides, Helen Keller, Dmitry Dedov, María Elósegui, Gilberto Felici, Erik Wennerström, judges, and Stephen Phillips, Section Registrar ,

Having regard to the above application lodged on 16 August 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Andrey Nikolayevich Savelyev, is a Russian national who was born in 1962 and lives in Moscow. He was represented before the Court by Mr E. Markov, a lawyer practising in Budapest.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

A. Background to the case

4. At the material time the applicant was a member of the State Duma of the Federal Assembly of the Russian Federation (“the Duma”).

5. In April 2007 representatives of the Movement Against Illegal Immigration, those of the Congress of Russian Communities, and members of a former political party, Rodina (“Motherland”), decided to found a new political party, Velikaya Rossiya (“Great Russia”).

6. During the founding congress of 5 May 2007 the applicant was elected chairman of the new party.

7. On 25 June 2007 the applicant applied to register the party.

8. On 24 July 2007 the Federal Registration Service refused to register the party owing to certain defects in its charter and falsifications in the submitted register of prospective members of the party.

B. The applicant ’ s letter to the Minister of Justice

9 . On 20 August 2007 the applicant sent an official letter to the Minister of Justice of Russia, alleging that the refusal to register his party had been arbitrary. He also published the letter in full on his website. In so far as relevant, the letter read as follows:

“I address you in my capacity as a member of the State Duma and the chairman of the Velikaya Rossiya party . My relationship with the Federal Registration Service, which is a part of the Ministry of Justice that you head, is complicated by illegality and by the unprofessional conduct of one of the Federal Registration Service ’ s officials, which manifests itself in serious breaches of the law and a cynical attack on the constitutional system.

I ask you to pay attention to the following facts:

...

The refusal to register the political party was arbitrary and devoid of sufficient factual and documentary basis. I suppose that the defects of the party ’ s charter referred to [by the Federal Registration Service] are the result of intentional disregard and arbitrary interpretation of the charter [by the Federal Registration Service].

...

As for the ‘ dead souls ’ [falsified entries in the register of prospective party members], the Head of the Federal Registration Service, [Mr V.], intentionally held back that out of 60,000 party members only four had been erroneously included in the register of members of the party. Moreover, this allegation was not substantiated by evidence. The ‘ numerous violations ’ are insignificant. I regret that one of the most important subdivisions of the civil service, which is involved in the formation of the system of power and the expression of people ’ s will at elections, is headed by a cynic and liar.

...

T he Head of the Federal Registration Service, Mr V., probably sets his hopes solely upon delayed justice in order to postpone the exposure of his unlawful and simply disgraceful acts ...”

C. Defamation proceedings

10. On 13 September 2007 Mr V. brought civil proceedings for defamation against the applicant, seeking to have the three following statements declared defamatory:

[1] “ The refusal to register the political party was arbitrary and devoid of sufficient factual and documentary basis”;

[2] “... one of the most important subdivisions of the civil service, which is involved in the formation of the system of power and the expression of people ’ s will at elections, is headed by a cynic and liar”; and

[3] “ T he Head of the Federal Registration Service, Mr V., probably sets his hopes solely upon delayed justice in order to postpone the exposure of his unlawful and simply disgraceful acts”.

11. The claimant sought that the applicant send a retraction of the letter of 20 August 2007 to the Minister of Justice and publish a retraction on his website. He also sought compensation in respect of non-pecuniary damage in the amount of 400 Russian roubles ((RUB) – approximately 11 euros (EUR)).

12. In the course of the proceedings, the applicant argued that the impugned statements had been taken out of context and that they had been value judgments rather than statements of fact. He also stated that letters similar to his one were a common practice among the members of the Duma, none of whom had been held liable for defamation. As regards the publication of the letter on the Internet, the applicant argued that it had been necessary to ensure transparency of his work as a member of the Duma.

13 . On 9 November 2007 the Savelovskiy District Court of Moscow (“the District Court”) delivered its judgment. It found that the first impugned statement had been a value judgment and thus had not been defamatory. It further held that the two remaining statements had been defamatory statements of fact unsupported by evidence. The District Court imposed on the applicant an obligation to send a retraction to the Ministry of Justice and to publish it on his website. It also ordered the applicant to pay Mr V. compensation in respect of non-pecuniary damage in the amount of RUB 400 and court fees in the amount of RUB 700 (approximately EUR 20).

14. The applicant appealed, claiming that he should not have been held liable for the contents of his formal complaint addressed to the Minister of Justice, that the impugned statements had been taken out of context, and that they had been value judgments.

15. On 21 February 2008 the Moscow City Court (“the City Court”) upheld the judgment on appeal, endorsing the first-instance court ’ s reasoning.

16 . According to the Government, on 19 June 2008 the bailiffs service commenced execution proceedings. However, the applicant did not pay Mr V. RUB 400, nor did he publish a retraction on his website. The judgment thus remained unenforced.

17 . According to the applicant, he paid the sum awarded to Mr V. and the court fees soon after the judgment had entered into force and before any enforcement proceedings were instituted. He did not keep a receipt to confirm payment. The text of the retraction ordered by the District Court appeared on the applicant ’ s website as part of the judgment of 9 November 2007 that the applicant had published to inform his constituency of the developments in the defamation proceedings. The retraction was also sent to the Minister of Justice.

COMPLAINT

18. The applicant complained under Article 10 of the Convention that the domestic courts ’ findings in the defamation proceedings against him had amounted to a disproportionate interference with his freedom of expression.

THE LAW

19. Article 10 of the Convention, in so far as relevant, reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ...

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. The parties ’ arguments

20. The Government pointed out that the amount that the domestic courts had awarded to the claimant had been small, that the applicant had never paid the sum awarded to Mr V., and that the District Court ’ s judgment had remained unenforced, and they argued that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention.

21. They furthermore argued, with reference to Court ’ s findings in Keller v. Hungary ((dec.), no. 33352/02, 4 April 2006), that the interference with the applicant ’ s right to freedom of expression had been lawful and “necessary in a democratic society” to protect the reputation of Mr V. Emphasising that the applicant had been a member of the Duma, not a journalist, that the letter had been published on his website, and that the impugned statements had overstepped the acceptable level of criticism of a civil servant, they invited the Court to declare the applicant ’ s complaint manifestly ill ‑ founded.

23. The applicant further argued that the impugned statements had been value judgments made in the context of a debate on an issue of high importance to the general public. The applicant had used mild language, and the impugned statements had had a sufficient factual basis. Mr V. had been a civil servant and thus should have shown a greater degree of tolerance of criticism. The domestic courts had not adduced “sufficient reasons” to justify the interference. The applicant concluded that the interference with his right to freedom of expression had not been “necessary in a democratic society”.

B. The Court ’ s assessment

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

26. The first question of whether the applicant has suffered any “significant disadvantage” represents the main element. Inspired by the general principle de minimis non curat praetor , this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant ’ s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, with further references, C.P. v. the United Kingdom (dec.) no. 300/11, § 42, 6 September 2016). A violation of the Convention may concern important questions of principle and thus cause a significant disadvantage regardless of pecuniary interest (see Korolev , cited above).

31. The Court further notes that the subject matter of the applicant ’ s complaint, even though it pertains to the right to freedom of expression, does not give rise to an important matter of principle. The applicant called a civil servant “a cynic and liar” in a letter to the Minister of Justice that he also chose to publish on his website. The Court is not convinced that such statements could be regarded as a contribution to the public debate on the election process in Russia or any other matter of general interest. Furthermore, at the moment of expressing himself, the applicant was not a member of the press. Accordingly, the standards established in the Court ’ s case-law regarding journalistic freedom and the safeguard afforded by Article 10 of the Convention to journalists (see, among many other authorities, Bédat v. Switzerland [GC], no. 56925/08, § 58, 29 March 2016 ) are not applicable in the circumstances of the present case . The Court thus discerns no wider implications or public interest undertones which might raise real concerns under Article 10 of the Convention (see Sylka , cited above, § 35).

32. In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violation of the Convention.

33. The second element contained in Article 35 § 3 (b) of the Convention obliges the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States ’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see Smith , cited above, § 46). The Court has previously examined cases against Russia concerning defamation proceedings born out of citizens ’ complaints to the authorities (see Zakharov v. Russia , no. 14881/03, 5 October 2006; Kazakov v. Russia , no. 1758/02, 18 December 2008; and Bezymyannyy v. Russia , no. 10941/03, 8 April 2010). It does not discern any compelling reason to warrant the examination of the applicant ’ s complaint on the merits. The Court thus finds that respect for human rights does not require an examination of this case.

34. Lastly, Article 35 § 3 (b) of the Convention does not allow the rejection of an application on account of a lack of significant disadvantage if the case has not been duly considered by a domestic tribunal. The Court notes that the defamation proceedings against the applicant were examined on the merits by the District Court and the City Court and that the applicant was able to submit his arguments in adversarial proceedings. When analysing the impugned statements, the District Court distinguished between statements of fact and value judgments (see paragraph 13 above). Consequently, the third element for rejection of an application under the above admissibility criterion has been satisfied.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 June 2019 .

Stephen Phillips Vincent A. De Gaetano Registrar President