FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11626/02 by Valentina PODOLSKAYA against Russia

The European Court of Human Rights ( First Section) , sitting on 8 July 2004 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. H ajiyev , judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application introduced on 28 February 2002,

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

The applicant, Mrs Valentina Vsevolodovna Podolskaya, is a Russian national, who was born in 1932 and lives in Orenburg. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

On 16 June 2000 the applicant’s husband, Mr Podolskiy, was presented a book Doctors of the 20 th Century (“ Доктора ХХ века ”) published by the Orenburg health protection department. On reading the book Mr Podolskiy found that his name had been omitted from a chronological list of directors of the Orenburg health protection department, although he had worked in that position from 1966 to 1981. Also, in another place there was a mistake in his initials. Finally, the book contained a photograph of Mr Podolskiy with an unknown woman; the caption of the photograph indicated that the persons on the photograph were “Mr Podolskiy with his spouse”.

On 7 August 2000 Mr Podolskiy lodged a civil action against the authors and publishers of the book for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. He also sought an injunction to stop dissemination of the book, recall all printed copies and make necessary corrections. Mr Podolskiy submitted that the omissions in the publication damaged his professional reputation and also “upset the peace” of his family life. He explained that he had been married to his spouse for more than fifty years and they both adhered to “traditional moral values” that included disapproval of divorce and re-marriages. He also stated that because of the publication he had to seek medical assistance in June and July 2000.

On 15 May 2001 the Leninskiy District Court of Orenburg gave its judgment. The court found that a mistake in Mr Podolskiy’s initials was a typographical error. It established that Mr Podolskiy’s name had been wrongly omitted from the chronological list and the caption of the picture was indeed incorrect. Nevertheless, the court concluded:

“However, the court does not consider that [this information] is damaging, i.e. [that it] contains indications that the plaintiff has committed an offence under existing laws or has transgressed moral principles...

Re-marriages are not prohibited by law, not condemned in society and can be entered into because of various reasons.”

The court dismissed Mr Podolskiy’s action in full. On 24 May 2001 Mr Podolskiy’s lawyer appealed against the judgment. He argued, in particular, that the damage caused to the plaintiff’s goodwill had to be assessed with regard to the plaintiff’s individual subjective values, such as the conviction that re ‑ marriages were unacceptable.

On 4 July 2001 Mr Podolskiy died of a heart attack.

On the applicant’s request, she was recognised as Mr Podolskiy’s legal successor in the civil proceedings. The court agreed that the applicant also had her own interest in pursuing the claim.

On 30 August 2001 the Orenburg Regional Court upheld the judgment of 15 May 2001. The court confirmed that the information in the book was incorrect; however, it did not consider that such information was damaging to Mr Podolskiy’s or the applicant’s dignity, honour or reputation.

B. Relevant domestic law

Article 151 of the Civil Code of the Russian Federation of 30 November 1994 provides that a court may award compensation for non-pecuniary damage to an individual who sustained such damage as a result of acts that violated his personal non-pecuniary rights.

Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for retraction of information damaging his or her honour, dignity or professional reputation unless the person who distributed such information proves its accuracy. In addition to retraction, the individual may also claim compensation for losses and non-pecuniary damage sustained as a result of distribution of such information.

COMPLAINTS

The applicant complains under Article 8 of the Convention about a violation of her right to respect for the private and family life. She submits that she was anguished and distressed every time when their co-workers, friends or strangers asked her whether she was a second or a third wife of her husband.

The applicant also complains under Articles 6 and 13 of the Convention that domestic courts failed to make good the alleged damage.

THE LAW

A. Objection of the Government as to the exhaustion of domestic remedies

The Government submit that on 1 February 2003 the new Code of Civil Procedure of the Russian Federation came into force. It introduced a new procedure for lodging supervisory review applications. Pursuant to Article 376 of the Code, the supervisory review proceedings may only be set in motion at the request of a party to the original proceedings. As the applicant never lodged such a request, the Government consider that she did not exhaust the domestic remedies available to her.

The applicant contends that her application was lodged before the new Code of Civil Procedure came into force and its provisions cannot be applied retroactively. Furthermore, she considers that the new procedure is not an effective remedy because it does not afford sufficient guarantees of fairness and impartiality: an initial assessment of the merits of the supervisory review application and the decision whether to open supervisory review proceedings are made by a single judge in the absence of the applicant and the case-file.

The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it (see Znamenskaya v. Russia (dec.), no. 77785/01, 25 March 2004; Baumann v. France , no. 33592/96, § 47, 22 May 2001). The request for supervisory review, as it existed at that time, was not considered to be an “effective” remedy for the purpose of Article 35 § 1 (see Pitkevich v. Russia (dec.), no. 47936/99, 8 February 2001). In the present case the Court is not required to decide whether the procedure for supervisory review provided for in the new Code of Civil Procedure is an effective remedy because it only became available on 1 February 2003, i.e. after the present application was lodged. The Court therefore considers that the domestic remedies have been exhausted (see Znamenskaya v. Russia (dec.), cited above; Timishev v. Russia (dec.), nos. 55762/00 and 55974/00, 30 March 2004).

Accordingly, the Government’s objection is dismissed.

B. Admissibility of the complaints

1. The applicant complains under Article 8 of the Convention that the domestic courts refused to order rectification of the errors contained in the book. Article 8 provides as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government accept that incorrect designation of the persons on the photograph as Mr Podolskiy and his wife violated Mr Podolskiy’s and the applicant’s right to respect for their family and private life. They admit that the domestic courts failed to take into account that the publication in question provoked Mr Podolskiy’s anguish and distress and caused dissension in his fifty-years-long family relationship with his wife.

The applicant takes note of the Government’s admissions.

The Court recalls that the notion of private life includes elements relating to a person’s identity, such as a person’s name (see Burghartz v. Switzerland , judgment of 22 February 1994, Series A no. 280 ‑ B, p. 28, § 24) or a person’s picture (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; cf. also Earl and Countess Spencer v. United Kingdom , nos. 28851/95 and 28852/95, Commission Decision of 16 January 1998).

The Court further recalls that Article 8 taken in conjunction with the obligation to secure the effective exercise of Convention rights imposed by Article 1 of the Convention, may involve a positive obligation on the State to provide a measure of protection for an individual’s private life in relation to the exercise by third parties of the right to freedom of expression bearing in mind the duties and responsibilities referred to in Article 10 (see Schüssel v. Austria (dec.), cited above).  A person shall, in principle, be protected against the publication of his picture where it constitutes an intrusion upon his privacy, where the picture is distorted or where it is accompanied by disparaging statements ( ibid .).

Turning to the facts of the present case, the Court notes that the actual photograph of the applicant has never been published. In fact, her only grievance was that a certain woman pictured on a photograph with her late husband had been referred to as his wife. The Court can accept that such an erroneous designation must have caused the applicant frustration and distress. However, in determining the dispute between the applicant’s late husband and the authors and publishers of the book, the domestic courts went to considerable lengths to establish the errors in the book and put them in context. The Court finds nothing on the facts of the case to indicate any lack of respect by the Government for the applicant’s right to respect for her private life. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant complains under Articles 6 and 13 of the Convention about a violation of her right to a fair and public hearing within a reasonable time by an impartial tribunal and her right to an effective remedy. Article 6 provides, in the relevant part, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court observes that the applicant benefited from the judicial determination of the civil action lodged by her late husband. Within the framework of the proceedings the applicant and her lawyer were able to introduce all necessary arguments in defence of her interests, and the domestic courts gave them due consideration. The applicant’s submissions do not disclose any procedural unfairness.

The Court further notes that the applicant had the opportunity to have her claims examined by the domestic courts. The requirement of effectiveness does not mean that the outcome of the proceedings should correspond to the applicant’s objectives (see Kaijalainen v. Finland , no. 24671/94, Commission decision of 12 April 1996).

It follows that these complaints are also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Christos Rozakis              Deputy Registrar President