FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 77062/01 by Galina CHERNYSHEVA against Russia

The European Court of Human Rights ( First Section) , sitting on 10 June 2004 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , 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 5 November 2001,

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 Galina Ivanovna Chernysheva, is a Russian national, who was born in 1961 and lives in Kaliningrad. The applicant is a journalist writing for the Citizen ( « Гражданин » ) newspaper published by the Kaliningrad town administration. The applicant is represented before the Court by Mr Yu. Shitikov, a lawyer practising in Kaliningrad. 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.

1. First article by the applicant

On 27 April 2000 the applicant published an article under the headline “Evil Flat of Prosecutor Tkach” ( «Нехорошая квартира прокурора Ткача» ) in the Citizen . The article concerned a civil dispute between Mrs Tkach, the spouse of the prosecutor of the Moskovskiy district of Kaliningrad Mr Tkach, and Mr and Mrs Sh., her neighbours who lived in the attic, right above Mrs Tkach’s flat. In 1998 Mrs Tkach and Mr T., another neighbour, had sued Mr and Mrs Sh. for an injunction to stop unauthorised construction works in the attic. The first-instance court had dismissed the suit. However, the applicant continued, the appeal court quashed the judgment in the part concerning the claims of Mrs Tkach, but not the claims of Mr T., notwithstanding the fact that their claims had been identical. The applicant alleged that this was only possible after Mr M., a colleague of Mr Tkach and prosecutor of the Tsentralniy district, intervened in the proceedings. In the article the applicant critically described the new hearing on Mrs Tkach’s claims on 27 March 2000 and strongly disagreed with the court judgment made in favour of Mrs Tkach. The article implied that the parties to the dispute were not equal before the law precisely because the plaintiff’s husband was a prosecutor.

2. First civil defamation action against the applicant

On 3 May 2000 the prosecutor Tkach filed an action against the applicant and the Citizen for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. The statement of claim was printed on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and signed “the prosecutor of the Moskovskiy district, senior justice advisor, V.N. Tkach”. It also bore the outgoing registration number of the prosecutor’s office.

Mr Tkach argued as follows:

“1. The said article puts a special emphasis on my actions, allegedly unworthy of a prosecutor; however, my professional activities and my position are in no way related to the essence of the judicial dispute in question: I was not a plaintiff in the dispute, [neither] as an individual nor as a prosecutor.

...No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion. No one has the right to invade my private life, I did not break the law living in my flat – neither as a prosecutor nor as an individual.”

Mr Tkach also submitted:

“In accordance with Article 43 of the Federal Law on Prosecutors in the Russian Federation verification of information on a violation allegedly committed by a prosecutor shall be the exclusive competence of prosecutors’ offices. This law applies to all citizens without exception, including journalists, who have no right to collect information on private lives of prosecutors and investigators and even more so to publish it in the media without consent of a prosecutor’s hierarchical superior.”

Mr Tkach explained that the action against the neighbours had been lodged by his wife who was also the owner of the flat. He denied that he or his wife had ever wanted to improve their living conditions at the expense of their neighbours. On this ground he requested the court to declare that the following extracts from the applicant’s article had damaged his honour and his professional reputation of a prosecutor:

“‘Every prosecutor has an evil flat of his own’. These words are not mine. This is what people say. You can think anything you want. But in our case the issue is that Mr and Mrs Tkach are dissatisfied with their housing conditions. They want an improvement. At the expense of their neighbours, Mr and Mrs Sh.”

“Make way! The prosecutors’ couple comes.”

“In order to satisfy [the claim of] Mr and Mrs Tkach and grant them [the right to use a part of the attic]... the administration of the Tsentralniy district will apparently have to:

- build a new entrance into the flat of Mr and Mrs Sh., which had already existed when they moved in;

- brick in the two doors leading into their rooms and cover the resulting wall with stucco and wallpaper;

- convert two separate rooms into one with the only one entrance-exit through the kitchen.”

“P.S. The prosecutor Tkach has a wonderful three-room flat, its total surface measures almost 100 square metres and the ceilings are three metres high.”

[“«У каждого прокурора есть своя нехорошая квартира». Это не мои слова. Это – уже фольклор. Здесь можно думать всё, что угодно. Но в нашем случае речь идет о том, что Ткачи недовольны своими квартирными условиями. Они хотят их улучшить. За счет соседей Ш.

Дорогу! Чета прокуроров идет!

Чтобы удовлетворить Ткачей, отдав им пазуху... администрации Центрального района, видимо, придется:

- перепланировать новый вход в квартиру Ш., который уже был, когда они вселялись;

- заложить кирпичами две двери в их комнаты, образовавшуюся стену зашпаклевать, поклеить обои;

- две их раздельные комнаты превратить в смежные, с единственным входом-выходом – в кухню.

P.S. У прокурора Ткача прекрасная трехкомнатная квартира, общей площадью почти 100 кв. м, с трехметровыми потолками.”]

The court accepted the defamation action and ordered a linguistic expert examination of the article at issue.

On 18 August 2000 the acting prosecutor of the Kaliningrad Region ( и.о. прокурора Калининградской области ) issued to Mr Tkach the following power of attorney printed on the prosecutor’s office letterhead and sealed with the prosecutor’s office stamp:

“[Hereby] the prosecutor’s office of the Kaliningrad Region represented by the acting prosecutor [Mr] Vyacheslav Fedorovich Chulkov authorises the prosecutor of the Moskovskiy district, [Mr] Vladimir Nikolayevich Tkach <...> to take part in civil proceedings before all judicial authorities, including [the action] for the protection of the honour and dignity of the prosecutor of the Moskovskiy district before the Tsentralniy District Court of Kaliningrad, having all rights granted by law to a plaintiff, defendant or third parties, [including the right] to withdraw the action in whole or in part, accept the claim, alter the subject of an action, conclude a friendly settlement, delegate the powers to an attorney (substitution), appeal against a court decision, obtain writs of execution, recover the awarded property or moneys, and sign all necessary documents on my behalf.”

On the same day Mr Tkach submitted a new version of his action. It was drafted on the letterhead of the prosecutor’s office of the Moskovskiy district of Kaliningrad and the plaintiff was designated as “the prosecutor of the Moskovskiy district, senior justice advisor, Mr Tkach”. The statement of claim bore an outgoing registration number of the prosecutor’s office. In the new version of the statement Mr Tkach referred to the results of an internal inquiry carried out by the prosecutor’s office of the Kaliningrad Region on 6 July 2000 in connection with the applicant’s article. According to Mr Tkach, the inquiry did not establish any violations or unethical behaviour on the part of Mr Tkach and found that the facts described in the articles were untrue. Mr Tkach submitted that the applicant had failed in her professional duty to publish only accurate information and abused her rights as a journalist because she had allegedly defamed him exclusively on the ground of his occupation, place of residence and professional position. Mr Tkach asked for compensation for non-pecuniary damage to be transferred to the bank account of the prosecutor’s office of the Kaliningrad Region. As to the remainder, Mr Tkach repeated his initial claims, but he also added that the title of the article in question be declared untrue and damaging to his reputation.

3. Second article by the applicant

On 16 November 2000 the applicant published a new article under the title “Prosecutor Tkach and freedom of expression – 4 (the story continues)” ( «Прокурор Ткач и свобода слова – 4 (эпопея продолжается)» ). The article related once again the story about the civil action brought by Mrs Tkach against her neighbours and alleged that only Mr Tkach’s intervention in his professional capacity had secured an award in favour of his spouse. The article also criticised Mr Chulkov’s decision to issue an official power of attorney to Mr Tkach for the protection of the latter’s personal interests.

4. Second and subsequent defamation actions against the applicant

On 4 December 2000 Mr Tkach filed a new action against the applicant and her newspaper. The statement of claim was drafted on plain paper and contained no reference to Mr Tkach’s position or professional affiliation. Mr Tkach claimed that the following extracts in the article of 16 November had damaged his honour and reputation:

“...the purpose of the claim [was] to prevent a reconstruction of the attic. Undertaken on legal grounds in accordance with a resolution of the head of the Tsentralniy district. The first attempt missed the target: the court did not grant the action. But when a subsequent action was filed and her husband – the prosecutor of the Moskovskiy District Mr Tkach – began to show up at the hearings, the judgment was made in [Mrs Tkach’s] favour...

But here is the issue: had he been a pensioner, just like his neighbour, the action would have never been granted.”

[“Смысл заявления – запретить реконструкцию чердака. Законно начатую согласно постановлению главы Центрального района. С первой попытки цель не была достигнута – суд не удовлетворил просьбу. Но когда был подан следующий иск и на заседаниях стал появляться ее муж – прокурор Московского района Ткач – решение вынесли в ее пользу...

Но ведь суть в чем: если бы он был пенсионером, как его сосед, иск не был бы выигран.“]

The applicant submits that between May and December 2000 Mr Tkach lodged in total six actions against her and the Citizen , of which four were lodged on behalf of the prosecutor’s office and the remaining two in Mr Tkach’s own name.

On 19 December 2000 the applicant lodged a counterclaim against Mr Tkach. The applicant submitted that Mr Tkach’s statement “No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion” had violated her right to freedom of expression and claimed compensation for non-pecuniary damage.

5. Examination of the defamation action

On 24 January 2001 Mr Tkach asked the court to leave the statements of claim lodged on behalf of the prosecutor’s office without examination because he had already brought identical claims on his own behalf.

On 26 January 2001 the Tsentralniy District Court of Kaliningrad, by an interim decision ( определение ), granted Mr Tkach’s request. According to the minutes of the court hearing of 26 January 2001, the applicant and her representative did not object to continuation of the proceedings on the basis of Mr Tkach’s statements of claim which he had lodged in his personal capacity.

(a) First examination by the district court

On 19 February 2001 the Tsentralniy District Court of Kaliningrad joined all actions and delivered a judgment.

The court found that the contested extracts concerned the quality of Mr Tkach’s living conditions and his role in the civil proceedings. It scrutinised the judgments made in the civil action lodged by Mrs Tkach and the results of the inquiry of the prosecutor’s office (of 6 July 2000) and came to the conclusion that the facts related in the article were untrue. The court found no evidence that Mr Tkach, in his professional capacity, had exercised any undue influence on the courts. The court held:

“Therefore, having examined the evidence and assessed the contents of the article as a whole, including its title ‘Evil Flat of Prosecutor Tkach’, and having regard to the fact how a reasonable member of the society would perceive this message, the court comes to the conclusion that the author’s account of the essence of the civil dispute and the author’s expressed opinion do not reflect the actual situation.

The word sequences and semantic units in the text, designated by the plaintiff V.N.Tkach, fall within the ambit of the concept of ‘untrue information’. The substantial and semantic contents of the texts in question also infringe the legally protected rights and interests of the plaintiff, in particular, his professional reputation.

Under these circumstances the court considers that the claims lodged by Mr Tkach shall be granted.”

The court pointed out that the principle of equality of arms would prevent a prosecutor from resorting in the civil proceedings to the special powers conferred on the prosecutor’s office. For this reason the court approved Mr Tkach’s decision to withdraw the four actions which he had lodged on behalf of the prosecutor’s office.

The court also accepted the applicant’s counterclaim and held that Mr Tkach’s statement challenged by the applicant encroached on the applicant’s protected journalistic rights.

The court did not award compensation for non-pecuniary damage to either party.

(b) Quashing of the judgment on appeal

On 2 March 2001 the applicant appealed against the judgment. On the same day the prosecutor of the Tsentralniy district, Mr S. Myashin, lodged a prosecutor’s appeal ( кассационный протест ) in the interests of Mr Tkach.

On 21 March 2001 the Kaliningrad Regional Court quashed the judgment of 19 February 2001 on procedural grounds and remitted the case for a new examination.

(c) Second examination by the district court

On 24 August 2001 the Tsentralniy District Court of Kaliningrad delivered a new judgment in the matter. In substance, the court followed the reasoning of the judgment of 19 February 2001. The court noted that the judgment made by the district court on Mrs Tkach’s claim had been subsequently upheld by the Kaliningrad Regional Court on 7 July 2000 and also scrutinised by the prosecutor in charge of supervision over the lawfulness of court decisions in civil cases who reported on 4 July 2000 that no violation had taken place. The Kaliningrad Regional prosecutor’s office and the Presidium of the Kaliningrad Regional Court refused to lodge applications for supervisory review as no breaches were found and a request for review was therefore unsubstantiated. The court observed that Mr Tkach’s official position was in no way related to the substance of the civil dispute in question; he was not a plaintiff or a party to the dispute and there were no evidence that he had exercised pressure on the court. Moreover, the first deputy mayor of Kaliningrad and the head of the Tsentralniy district administration confirmed that neither Mr Tkach nor his spouse had ever applied for permission to reconstruct their flat or otherwise improve their living conditions at the expense of neighbours Sh. On the other hand, the court had regard to the overwhelming evidence showing that neighbours Sh. maintained the attic in a dilapidated state, flooded Mrs Tkach’s flat and refused access to the attic to housing maintenance workers.

The court held that the information in the articles of 27 April and 16 November 2000 was untrue and damaging to the plaintiff’s honour and professional reputation and caused him non-pecuniary damage. It awarded Mr Tkach RUR 3,000 (EUR 114) payable jointly by the applicant and her newspaper.

Having examined the applicant’s counterclaim against Mr Tkach, the court found that the statement of claim of 3 May 2000 had been indeed submitted on the prosecutor’s office stationary, yet it did not specifically mention that the claim had been lodged in the State or public interests. The court held that the contested statement should be interpreted as a private person’s position rather than as a prosecutor’s injunction. An application to a court for the protection of one’s rights containing arguments in support of the plaintiff’s cause cannot be held to infringe rights of others. Moreover, the court had regard to the decision of the district court of 26 January 2001 whereby the contested statement of claim had been left without examination. The applicant’s counterclaim was therefore dismissed.

The court noted in the judgment that the representatives of the applicant, Messrs Stepanov and Zinovyev, did not attend after a break, on the second day of the hearing, despite having been duly informed of the time and place of the hearing agreed between the parties. The court observed that they failed to show any valid reasons for their absence, the documents on the file were sufficient for examination of the merits and that the other party did not object to continuing the examination in their absence.

On 30 August 2001 the applicant appealed against the judgment. In her appeal the applicant submitted, in particular, that the judgment had been given without her or her representatives being present. She explained that the hearing had begun on Thursday, 23 August. At 5.45 p.m. the judge had announced a break. The applicant alleged that she had not been informed when the hearing would resume. On Monday, 27 August, the applicant’s representative arrived at the courtroom only to find that the judgment had been delivered on 24 August. In her appeal the applicant also challenged the merits of the judgment.

(d) Confirmation of the judgment on appeal

On 10 October 2001 the Kaliningrad Regional Court upheld in substance the judgment of 24 August 2001. However, the court reduced the amount of the award to RUR 250 (EUR 9) for the applicant and to RUR 500 (EUR 18) for the Citizen . The court reasoned its decision to reduce the award as follows:

“... the extent of the applicants’ liability for dissemination of untrue information is insignificant because the judicial dispute with Mr and Mrs Sh. concerning the attic had indeed taken place, and the dissemination of damaging and inaccurate information is a result of incorrect, erroneous evaluation of the circumstances of that dispute.”

The court also found that the applicant and her representative had been duly notified that the hearing would resume at 10.30 a.m. on 24 August and their consent had been noted in the transcript of the hearing on 23 August.

6. Subsequent developments

On 1 November 2001 and 6 February 2002 Mr Tkach sent a request to the Head of the Town Council ( председатель городского Совета депутатов ) to impose a disciplinary sanction on the editor-in-chief of the Citizen and the applicant herself with a view of their future dismissal. The sanction was to be imposed for dissemination of untrue information.

On 18 April 2002 the first deputy prosecutor of the Kaliningrad Region, Mr Tyapyshev, sent a “request to remedy the violation” ( представление об устранении нарушения ) to the editor-in-chief of the applicant’s newspaper. The prosecutor requested, inter alia , a decision to apply  disciplinary sanctions on the applicant in connection with her having disseminated the information damaging the reputation of the prosecutor of the Moskovskiy district, Mr Tkach.

On an unspecified date the applicant, her former representative Mr Stepanov and the editor-in-chief of the newspaper lodged a civil action against Mr Tkach for the protection of their honour, dignity and professional reputation and compensation for non-pecuniary damage. They submitted that at the oral hearing on 23 August 2001 in the Tsentralniy District Court of Kaliningrad and in his written submissions to that court Mr Tkach referred to them as “slanderers” who “badgered” him by publishing “ravings” about a non-existent problem and wrote letters to the authorities insisting that the applicant and the editor be dismissed.

On 17 April 2002 the Tsentralniy District Court of Kaliningrad granted the defamation action lodged by the applicant and her colleagues and ordered Mr Tkach to pay RUR 250 (EUR 9) to each of the applicant and Mr Stepanov. On 5 June 2002 the Kaliningrad Regional Court upheld, on Mr Tkach’s appeal, the judgment of 17 April 2002. On 25 November 2002 the Presidium of the Kaliningrad Regional Court refused the application for supervisory review lodged by the acting prosecutor of the Kaliningrad Region against the judgment of 17 April 2002.

On 12 November 2002 the Tsentralniy District Court of Kaliningrad granted yet another defamation action lodged by the applicant against Mr Tkach in connection with the letters which Mr Tkach had sent to the Mayor of Kaliningrad and to the Head of the Town Council. In these letters Mr Tkach requested that the municipal officials stop the publication of “slanderous” articles in the newspaper owned by the town administration. The court ordered Mr Tkach to pay RUR 250 to the applicant.

B. Relevant domestic law

Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media.

Article 152 of the Civil Code of the Russian Federation provides that an individual may seize a court with a request for refutation of information ( сведения ) damaging his or her honour, dignity or professional reputation unless the person who disseminated such information proves its accuracy. The individual may also claim compensation for losses and non-pecuniary damage sustained as a result of dissemination of such information.

The Code of Civil Procedure of the RSFSR (in force at the material time) provided as follows:

Article 41. Participation of a prosecutor in the proceedings

“A prosecutor may bring to a court a claim for the protection of rights and lawfully protected interests of other persons or enter the proceedings at any stage, if it is required for the protection of State or public interests or rights and lawfully protected interests of citizens.

The participation of a prosecutor in civil proceedings is mandatory in the cases where the law so provides or where the necessity of his participation in a specific case has been recognised by the court.

The prosecutor who participates in the proceedings may study the case materials, bring challenges, produce evidence, take part in the examination of evidence, lodge motions, state his opinion on issues arising in the course of the proceedings and on the merits of the case as a whole, as well as perform other procedural actions provided for by law. The prosecutor’s abandoning of a claim lodged for the protection of interests of another person does not impair that person’s right to have his case examined on the merits.”

COMPLAINTS

The applicant complain ed under Article 10 § 1 of the Convention about a violation of her right to impart information.

The applicant complain ed under Articles 6 and 13 of the Convention that she had not been able to obtain a fair hearing in the defamation proceedings against her. In particular, she contended that the judicial determination had been carried out without respect for the guarantees of the equality of arms principle and that she had not been notified about the time and date when the hearing would resume after the break on 23 August 2001.

The applicant complained under Article 13 of the Convention about the domestic courts’ dismissal of her action against prosecutor Tkach.

THE LAW

1 . The applicant complained that her right to freedom of expression had been violated in the proceedings leading up to the judgment of the Kaliningrad Regional Court of 10 October 2001. She alleged a violation of Article 10 of the Convention which provides 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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. Arguments by the parties

The Government

The Government submit that there was no interference with the applicant’s right to receive and impart information or to express her opinion. They maintain that the judgments of the domestic courts concerned dissemination of the information damaging an individual’s honour, dignity and professional reputation and, accordingly, the provisions of Article 10 § 1 of the Convention must be interpreted not only in the light of para. 2, but also with regard to Article 17 of the Convention. The courts correctly applied Article 152 of the Russian Civil Code. The Government consider that the judgments of the domestic courts did not upset the balance between the applicant’s rights under Article 10 and prosecutor Tkach’s rights deriving from Article 8 of the Convention. They continue that there is no legal reason to presume a violation of Article 10 only because the applicant was a journalist and the offended party was a prosecutor. Finally, they conclude that the judgments of the domestic courts were “justified in the [light] of Article 10 § 2 of the Convention” and refer in their support to para. 53 of the Marônek v. Slovakia judgment (no. 32686/96, ECHR 2001 ‑ III).

The applicant

The applicant alleges that the sentence “No journalist should be allowed to make [the living conditions] of a prosecutor the subject of a public discussion” contained in Mr Tkach’s statement of claim of 3 May 2000 which had been printed on the stationary of the prosecutor’s office of the Moskovskiy district was in fact a prosecutor’s injunction ( предписание прокурора ) binding on all journalists and therefore amounted to de facto censorship. In the applicant’s opinion, such interference was not justified under Article 10 § 2 of the Convention because such restriction of the freedom of expression did not pursue any of the legitimate aims enumerated in that provision. The applicant considers that the domestic courts’ failure to impose a “punishment” on prosecutor Tkach in connection with the above-quoted statement violated her right to impart opinions and judgments. She refers to the judgments of the Tsentralniy District Court of Kaliningrad of 17 April and 12 November 2002 which confirmed that the applicant’s articles had not been slanderous.

B. The Court’s assessment

The Court finds that the judgments complained of constituted an interference with the applicant’s right to freedom of expression as guaranteed under the first paragraph of Article 10. It considers that the interference was “prescribed by law”, namely Article 152 of the Russian Civil Code, and served the legitimate aim of the protection of “the reputation or rights of others”. The interference thus fulfilled two of the three conditions for being justified under the second paragraph of Article 10. The point at issue in the present case relates to the third condition set out in the second paragraph of Article 10, and namely whether the interference was “necessary in a democratic society” (see Marônek v. Slovakia , cited above, §§ 47-48).

As regards the necessity test, the Court reiterates the basic principles concerning Article 10 as laid down in its case-law (see, among other authorities, Handyside v. the United Kingdom , 7 December 1976, Series A no. 24; Lingens v. Austria , 8 July 1986, Series A, no. 103; Jersild v. Denmark , 23 September 1994, Series A, no. 298; Janowski v. Poland [GC], no. 25716/94, ECHR 1999-I; Jerusalem v. Austria , no. 26958/95, ECHR 2001 ‑ II; Nikula v. Finland , no. 31611/96, ECHR 2002 ‑ II; LeÅ¡ník v. Slovakia , no. 35640/97, ECHR 2003 ‑ IV; and Yankov v. Bulgaria , no. 39084/97, ECHR 2003 ‑ ...):

(i) The test of necessity in a democratic society requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1) , judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. Thus, the Court’s task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999 ‑ I).

(ii) In the freedom of expression cases a distinction has to be drawn between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, e.g. , Lingens v. Austria , cited above, § 46; Oberschlick v. Austria (no. 1) , judgment of 23 May 1991, Series A no. 204, p. 27, § 63). However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive (see Jerusalem v. Austria , cited above, § 43).

(iii) Another factor of particular relevance to the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Thorgeir Thorgeirson v. Iceland , judgment of 25 June 1992, Series A no. 239, p. 27, § 63; Jersild v. Denmark , cited above, § 31; De Haes and Gijsels v. Belgium , judgment of 24 February 1997, Reports of Judgments and Decisions 1997 ‑ I, pp. 233-34, § 37). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria , judgment of 26 April 1995, Series A no. 313, p. 19, § 38). Thus, the national margin of appreciation is circumscribed by the interest of a democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern (see Goodwin v. the United Kingdom , judgment of 27 March 1996, Reports of Judgments and Decisions 1996 ‑ II, p. 500, § 39).

(iv) Finally, it is to be recalled that in a democratic society individuals are entitled to comment on and criticise the administration of justice and the officials involved in it. Limits of acceptable criticism in respect of civil servants exercising their powers may admittedly in some circumstances be wider than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions. Moreover, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive, abusive or defamatory attacks when on duty. Public prosecutors are civil servants whose task it is to contribute to the proper administration of justice. In this respect they form part of the judicial machinery in the broader sense of this term. It is in the general interest that they, like judicial officers, should enjoy public confidence. It may therefore be necessary for the State to protect them from accusations that are unfounded (see Lešník v. Slovakia , cited above, §§ 53-54).

Turning to the circumstances of the present case, the Court observes that the applicant was found civilly liable for defamation of a local prosecutor in connection with two articles of 27 April and 16 November 2000 which she had written and published. In both publications she maintained that a prosecutor of the Moskovskiy district of Kaliningrad, Mr Tkach, had exercised – either directly or by the mediation of a fellow prosecutor of the Tsentralniy district – undue pressure on a district court that determined a civil action between the prosecutor’s spouse and her neighbours. The applicant implied that the claims of the prosecutor’s spouse were unfair, if not unlawful, and the action was only granted because Mr Tkach swayed the district court in favour of his spouse.

The Court has no doubts that the fairness of the administration of justice is a matter of great public concern and it is incumbent on journalists to play the role of “public watchdog” and to expose attempts to interfere with the court proceedings or to influence their outcome by extrajudicial means. The publications in the instant case presented an account of a dispute between neighbours in such a way that readers were inevitably given the impression that Mr Tkach had used the connections and authority inherent in his position of a State prosecutor to tilt the judicial scales in favour of his wife who was the plaintiff in the dispute.

The Court notes that the allegations emanated from the applicant herself: she did not quote from another source or merely repeat statements made by others. In this respect the Court recalls that Article 10 of the Convention protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I; Schwabe v. Austria , judgment of 28 August 1992, Series A no. 242 ‑ B, p. 34, § 34; Prager and Oberschlick v. Austria , judgment of 26 April 1995, Series A no. 313, p. 18, § 37). Accordingly, Article 10 of the Convention does not guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. By the terms of paragraph 2 of the Article the exercise of this freedom carries with it “duties and responsibilities”, which also apply to the press. These “duties and responsibilities” are liable to assume significance when, as in the present case, there is a question of attacking the reputation of a named individual.

The Court considers that in the instant case it is not necessary to examine whether the impugned extracts were statements of facts or value judgments. Even with the most liberal interpretation an accusation of the kind advanced by the applicant required some factual basis. However, in the Court’s view, such basis was conspicuously lacking: at no stage of the proceedings – either before the domestic authorities or before this Court – did the applicant make an attempt to show the veracity of her allegations.

The domestic courts found, after having examined all the available evidence, that the impugned statements were untrue. They established that Mr Tkach had not been a party to the civil dispute between his wife and neighbours Sh. He had not taken part in the proceedings as the plaintiff, third-party, witness or as a State official. In any event, Mr Tkach had served in the prosecutor’s office of an administrative district other than that where the district court had been located. The domestic courts did not find any indications that Mr Tkach had influenced the proceedings before the district court through his personal connections or otherwise. There is no information before the Court which would indicate that these findings were contrary to the facts of the case or otherwise arbitrary. The Court is satisfied that the reasons for the interference given by the domestic courts in connection with the applicant’s statements accusing Mr Tkach of unlawful pressure on a district court were relevant and sufficient.

The applicant’s accusations were of a serious nature and were made repeatedly, in a series of publications. They were capable of insulting Mr Tkach, of affecting him in the performance of his duties and also of damaging his reputation. There is nothing to suggest that the applicant was prevented from carrying out adequate research in support of her accusations or from presenting a more balanced account of the situation. Viewed against this background and having regard to the above conclusions on the conspicuous lack of any factual basis, the Court considers that the applicant’s statements were not a fair comment on the administration of justice but rather a gratuitous personal attack on the professional reputation of a public prosecutor (cf., a contrario , Unabhängige Initiative Informationsvielfalt v. Austria , no. 28525/95, § 43, ECHR 2002 ‑ I). It finds therefore that there was a pressing social need to prevent the careless use of such grave allegations.

As regards the proportionality of the interference, the Court recalls that it did not find a violation of Article 10 of the Convention in the Lešník v. Slovakia case, where the applicant had been criminally convicted for having accused a public prosecutor of misconduct and breaches of law in a letter sent to the General Prosecutor’s Office, regardless of the fact that the impugned statements were not made to the media or otherwise published by the applicant to the outside world but were contained in the letters addressed to the prosecutor himself and his hierarchical superior. In the instant case, on the contrary, the applicant, a professional journalist, deliberately made her allegations known to the general public by repeatedly publishing them in a newspaper having circulation of 3,000 copies. The harm caused to the public prosecutor concerned by the applicant’s statements must have been further exacerbated because the newspaper in question was the official bulletin of the town administration and the readership might have been given the impression that the criticism of his professional conduct was backed up by the municipal authorities.

Furthermore, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, as a recent authority, Skałka v. Poland , no. 43425/98, § 38, 27 May 2003). In this respect, the Court notes that the proceedings at issue were civil rather than criminal in nature and that the applicant was eventually ordered to pay the very small amount of RUR 250 (9 euros). It is also noteworthy that, in reaching the decision to reduce substantially the amount of the award, the Regional Court noted that the dispute in question had indeed taken place and the applicant was only to be blamed for an “erroneous evaluation” of the circumstances of that dispute.

In view of the above considerations and having regard to the margin of appreciation afforded to the national authorities in such matters, the Court finds that the interference complained of was not disproportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify it. The interference could thus reasonably be considered necessary in a democratic society to protect the reputation or rights of others within the meaning of Article 10 § 2.

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 complained under Article 6 § 1 of the Convention about a breach of the equality of arms principle in that the plaintiff had participated in the proceedings not as an individual but rather in his professional capacity as a prosecutor. She also complained under this provision that she had not been given an opportunity to attend the hearing on 23 August 2001. Article 6, in the relevant part, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

A. Arguments by the parties

The Government

The Government submit that Mr Tkach filed a defamation action against the applicant on his own behalf, as an individual. They refer to the interim decision of the Tsentralniy District Court of 26 January 2001, by which the statements of claim drafted on the stationary of the prosecutor’s office were left without examination. They further point out that Mr Tkach also withdrew his statement of claim of 3 May 2000 that contained the sentence contested by the applicant.

The applicant

The applicant maintains that the lack of equality of arms in the civil proceedings prevented her from benefiting from a fair determination of her rights and resulted in her being persecuted by the prosecutor’s office. She submits that the equality of arms was breached because Mr Tkach had filed his statements of claim on the stationary of the prosecutor’s office.

B. The Court’s assessment

As regards the alleged breach of the equality of arms principle, the Court reiterates that under the principle of equality of arms, as one of the features of the wider concept of a fair trial, each party must be afforded a reasonable opportunity to present its case under conditions that do not place it at a disadvantage vis-à-vis its opponent (see Dombo Beheer B.V. v. the Netherlands , judgment of 27 October 1993, Series A no. 274, p. 19, § 33).

In this connection, the Court considers that the mere fact that a public prosecutor was a plaintiff in the civil defamation proceedings cannot as such give rise to an issue under Article 6 (see, mutatis mutandis , Todorov v. Bulgaria (dec.), no. 39832/98, 14 March 2002).

The Court must examine the role actually played in the proceedings by the public prosecutor in question (see Kress v. France [GC], no. 39594/98, § 71 in fine , ECHR 2001 ‑ VI). The Court recalls that in a number of cases concerning the role of “special” participants in proceedings, such as Advocate-General, Government Commissioner or similar officers, it held that there had been a violation of Article 6 § 1 of the Convention on account of the failure to disclose in advance the submissions of the officer concerned and the impossibility of replying to them, and on account of the participation of such officers in the deliberations of the courts, which had infringed the principle of equality of arms (see Kress v. France , cited above, §§ 64-65 and 87, with further references).

Turning to the facts of the present case, the Court accepts that the drafting of statements of claim on the stationary of the prosecutor’s office might well have been intended to create the impression that the action was lodged for the protection of public or State interests, especially in the light of the prominent role that public prosecutors’ offices could assume in the civil proceedings (cf. Article 41 of the Code of Civil Procedure in the “Domestic law” section above). However, even assuming that Mr Tkach’s intention had indeed been to secure in this way his prevalence in the proceedings, the use of the official stationary might only have been ethically reprehensible, yet – from the procedural standpoint – it did not give Mr Tkach (as the plaintiff) any rights not afforded to the other party. In particular, he did not have the right to attend the deliberations of the court, give legally binding opinions, or present his or her point of view after the other parties, in writing or orally (cf., mutatis mutandis , Todorov v. Bulgaria (dec.), cited above). More importantly, the Court notes that all of the statements of claim submitted on the official stationary of a prosecutor’s office were subsequently withdrawn at Mr Tkach’s own request and this withdrawal was formally confirmed in the interim decision of the district court made on 26 January 2001, i.e. before the examination of the merits of the claims began. The statement of claim of 3 May 2000 challenged by the applicant was among those withdrawn. The Court concludes that these documents did not interfere with the respect for the equality of arms principle.

The Court next observes that, by the terms of the so-called “power of attorney” of 18 August 2000, the scope of the procedural rights conferred on Mr Tkach was explicitly defined to be identical to that of an “ordinary” plaintiff in civil proceedings. It does not appear that the document in question authorised Mr Tkach to assume any additional rights that are only vested by law in State prosecutors. The Court finds that the document at issue was in fact, notwithstanding its somewhat confusing designation as “power of attorney”, a formal permission for an employee of a State law-enforcement agency to take part in the civil proceedings that he had initiated in his personal capacity. In any event, the Court again notes that the proceedings on behalf of the prosecutor’s office (which might have required a power of attorney) were abandoned. The Court considers therefore that the issuing of the “power of attorney” could not upset the equality of arms between the parties.

As regards the presence of the applicant and her representatives at the hearing on 23 August 2001, the Court notes that this issue was thoroughly examined in the judgments of the first-instance and appeal courts. The national courts established that both of the applicant’s representatives were duly notified of the time when the proceedings would resume after the break. Their consent was noted in the transcript of the hearing in which the break was announced. No adjournment of the hearing was sought. The applicant does not produce any evidence showing that it was not so. The Court concludes that the applicant forfeited her right to be present of her own will and the national authorities cannot be blamed for the failure to secure her presence.

In any event, as regards both limbs of the applicant’s complaint under Article 6, the Court finds that the shortcomings complained of in the proceedings at first instance, if any, were remedied in the appellate proceedings in which the first instance judgment was subject to control by a judicial body that had full jurisdiction in the case and provided the guarantees of an impartial and independent tribunal within the meaning of Article 6 (see, mutatis mutandis , De Haan v. the Netherlands , judgment of 26 August 1997, Reports of Judgments and Decisions 1997 ‑ IV, § 52, with further references).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3 . Finally, the applicant complains under Article 13 of the Convention that the proceedings before the domestic authorities were not an effective remedy and that the domestic courts dismissed her counterclaim against prosecutor Tkach. Article 13 reads as follows:

“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.”

As regards the complaint about the courts’ dismissal of the applicant’s counterclaim, the Court notes that the applicant had the opportunity to have her claim against Mr Tkach 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).

Furthermore, according to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).  The Court has found that the applicant’s complaints under Articles 6 and 10 are manifestly ill-founded. It follows that, to the extent that Article 13 applies in connection with Article 6 claims in contexts such as the present, the applicant does not have an “arguable claim” and her complaints do not attract the guarantees of Article 13.

This complaint must also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Santiago Quesada Christos Rozakis              Deputy Registrar President