FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25968/02 by Viktor DYULDIN and Aleksandr KISLOV against Russia

The European Court of Human Rights ( First Section) , sitting on 13 May 2004 as a Chamber composed of:

Mr P. Lorenzen , President , Mr G. Bonello , Mrs F. Tulkens , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner, judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 30 October 2001,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Viktor Gavrilovich Dyuldin and Mr Aleksandr Ivanovich Kislov, are Russian nationals, who were born in 1944 and 1948, respectively, and live in Penza . The first applicant is a trade union leader, the second applicant is a journalist. They also co-chair the association of voters of the Penza Region “Civic Unity” ( Пензенское областное объединение избирателей “ Гражданское единство ” ). The applicants are represented before the Court by Mrs F. Baisheva. 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. Adoption and publication of the address to President Putin

On 15 August 2000 the Co-ordination Council of the association of voters of the Penza Region “Civic Unity” adopted at its meeting a draft text of an address entitled “Media coverage of the reforms of President Putin in the Penza Region” (“ Информационное обеспечение реформ Президента В . В . Путина в Пензенской области ”).

On 16 August 2000 a round-table discussion of the text took place. Those in attendance included the applicants, editors-in-chief of local newspapers and journalists. The draft was amended and expanded. The discussion concluded with the adoption of the Address by the Co-ordination Council of “Civic Unity” and managers of the mass-media in the Penza Region to the President of the Russian Federation, the Security Council of the Russian Federation, the Journalists' Union of Russia, the plenipotentiary representative of the President for the Volga Federal District Mr Kiriyenko, the Minister for Press and Information of the Russian Federation Mr Lessin (“the Address”). The Address was signed by the applicants and four editors-in-chief of local newspapers.

On 24 August 2000 the newspaper “New Stock-Exchange Newspaper” (“ Новая биржевая газета ”) published the Address on the front page. The relevant extracts of the Address read as follows:

“We (authors of the Address) subscribe to various political views, yet we are unanimous in our support of the President's line to curb the corruption in the country, to bring order to the economy, to assert the rule of law and democratic standards in all fields of the life of society. We gathered around the round-table because of our common concern for the fate of the President's reforms in the Penza Region. The Penza Region is gradually transforming into a private holding controlled by the Governor V. Bochkaryov and his close circle ... [emphasis added, see below]

Today we all (the mass-media) embarrass the regional power because we openly disagree with the selfish and destructive policy of the governor and his team , we publish materials denouncing bribe-takers and officials who abuse their position...

Now again, as in early 1991 when the [Communist] Party's nomenclature feared their imminent dismissal, the regional power started reprisals against the independent media. Journalists are subjected to threats and beatings, our publications are banned from printing and dissemination in the region ...

On the other side – the independent [mass-media], the governor and his vassals consistently suppress their attempts to protect the rule of law, human rights, to talk about bringing order to the economy and to expose corruption ...”

[“Мы (авторы Обращения) исповедуем разные политические взгляды, но при этом едины в поддержке курса президента на обуздание коррупции в стране, наведение порядке в экономике, утверждение законности и демократических норм во всех сферах жизни общества. За «Круглым столом» нас собрала общая тревога за судьбу президентских реформ в Пензенской области. Пензенская область постепенно превращается в частный холдинг, контролируемый губернатором В. Бочкаревым и его ближайшим окружением...

Сегодня все мы (СМИ) неугодны областной власти, поскольку открыто выражаем несогласие с корыстной и разрушительной политикой губернатора и его команды, публикуем разоблачительные материалы о коррупционерах и должностных махинаторах...

Опять, как и в начале 1991 года, когда партийные бонзы чувствовали скорую отставку, областная власть начала гонения на независимую прессу. Журналистов подвергают угрозам, избиениям, наши издания запрещают печатать и распространять в регионе...

С другой (стороны) – независимые (СМИ), попытки которых отстаивать законность, права человека, говорить о наведении порядка в экономике, разоблачать коррупцию, постоянно пресекаются губернатором и его подручными...”]

The remainder of the Address harshly criticised the Governor of the Penza Region himself and contained allegations of his serious wrongdoings.

2. Civil defamation action against the applicants

(a) Defamation action lodged by the State officials against the applicants

On 3 February 2001 twelve members of the Government of the Penza Region lodged a civil action with the Leninskiy District Court of Penza for the protection of their honour, dignity and the professional reputation and for compensation for non-pecuniary damage allegedly sustained as a result of the publication of the Address. They designated the applicants and other signatories of the Address, as well as the newspaper that published it, as co-defendants. On 3 March 2001 the initial plaintiffs were joined by fourteen other members of the Government of the Penza Region whose claims were identical. On 30 March 2001 one of the original plaintiffs, Mr D., withdrew his claim. He also gave an interview to the “New Stock-Exchange Newspaper” where he referred to the proceedings as “an attempt to put the media under control”. In April 2001 Mr D. was dismissed from his position in the Government of the Penza Region.

On an unspecified date the applicants asked the court to order a linguistics expert examination of the Address. The court refused their request.

(b) The applicant's counterclaim against the State officials

The applicants brought a counterclaim against the plaintiffs. The applicants alleged that the plaintiffs violated the law on the civil service in the Russian Federation in that they used their official position to discredit and adversely affect the functioning of “Civic Unity”. The applicants claimed compensation for non-pecuniary damage allegedly caused by a violation of their non-pecuniary rights and freedoms, in particular, the right to freedom of opinion guaranteed by the Russian Constitution.

(c) Judgment of the first-instance court

On 15 May 2001 the Leninskiy District Court of Penza gave its judgment. The court engaged firstly in a detailed analysis of federal and regional laws on the structure of power of the Penza Region and reached the following conclusion:

“...any State official in the Penza Region wields certain power and authority that are required for the performance of his functional duties; hence, he falls into the category of 'regional power'. Considering that the 'regional power' is made up of individuals, i.e. State officials, the term 'regional power' applies to each plaintiff who is, by virtue of his position, a State official in the Penza Region.

The words 'the close circle of Governor Bochkarev', 'vassals of the governor', 'the governor's team' used in the publication in question are, in the court's opinion, – and  despite the defendants' and their representatives' assertions to the contrary – applicable to all State officials [working in] the executive body of the State power of the Penza Region and, consequently, to the plaintiffs.”

[“...любой государственный служащий Пензенской области наделен определенными властными полномочиями, необходимыми для выполнения его функциональных обязанностей, следовательно, его можно отнести к категории «областной власти». А учитывая, что «областная власть» состоит из физических лиц, т.е. государственных служащих, то понятие «областная власть» относится и к любому из истцов, являющихся по должности государственными служащими Пензенской области.

Использованные в рассматриваемой публикации понятия «ближайшее окружение губернатора В. Бочкарева», «подручные губернатора», «команда губернатора», хотя ответчики и их представители утверждают обратное, по мнению суда, относятся ко всем государственным служащим исполнительного органа государственной власти Пензенской области, а значит и к истцам.”]

The court next examined the truthfulness of the applicants' statements about the “destructive” policy of the governor's team. It found that the applicants had not used any “scientific methodology for comprehensive assessment of the social and economic development of the region” for the preparation of the Address and their evaluation had been entirely based on their personal appreciation. The court rejected the statement by Mr D. who testified about the economic decline in the Penza Region in 2001 because he had been dismissed from the Government and therefore, in the court's opinion, he was on the defendants' side. The court concluded that the statements about the “selfish and destructive policy” were false.

Similarly, the court found no evidence to support the statements about persecution of journalists in the Penza Region. It pointed out that one of the signatories, an editor-in-chief of the local newspaper, could not show that an attack on a journalist of his newspaper had been politically motivated. In the court's opinion, the campaigning of a group of the Government's members who had put pressure on local officials to subscribe to the Governor-controlled newspapers to the detriment of all others was lawful and could not be interpreted as “prohibition on dissemination”.

The court held that the extracts of the Address emphasised in the text above were not true and that they damaged the honour and dignity of the plaintiffs, the members of the Government of the Penza Region. It ordered that all plaintiffs be jointly compensated for non-pecuniary damage: the defendant newspaper was to pay RUR 50,000 (EUR 2,000) and each of the applicants and four of their co-defendants was to pay RUR 2,500 (EUR 100). The court also ordered the defendant newspaper to publish a retraction.

The court dismissed the applicants' counterclaim on the ground that the plaintiffs had exercised their right to a court and, therefore, did not violate any rights of the applicants.

(d) Judgment of the appeal court

On an unspecified date the applicants appealed against the judgment of 15 May 2001. Their points of appeal mainly contested the findings of the first-instance court as to the applicability of the extracts in question to the plaintiffs and its interpretation of the evidence.

On 24 July 2001 the Civil Chamber of the Penza Regional Court upheld the judgment of 15 May 2001.

(e) Applications for supervisory review

On 27 September and 23 November 2001 the Presidium of the Penza Regional Court and the Supreme Court of the Russian Federation, respectively, refused the applicants' applications for supervisory review.

On 29 January 2002 the Presidium of the Penza Regional Court refused the second request for supervisory review.

B. Relevant domestic law

Constitution of the Russian Federation

Article 29 guarantees freedom of ideas and expression, as well as freedom of mass media.

Article 33 provides that Russian citizens shall have the right to petition in person, as well as to submit individual and collective appeals to, State authorities and local self-government bodies.

Civil Code of the Russian Federation of 30 November 1994

Article 151 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 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 rules governing the protection of the professional reputation of a physical person are likewise applicable to the protection of the professional reputation of legal entities.

Resolution no. 11 of the Plenary Supreme Court of the Russian Federation of 18 August 1992 (as amended on 25 April 1995)

Resolution no. 11 “On certain issues arising during the court examination of claims for the protection of honour and dignity of individuals, as well as of the professional reputation of individuals and legal entities” provides that to be considered damaging the information ( сведения ) must be untrue and contain statements about an individual's or a legal entity's transgression of the laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in the everyday life, etc.) (Section 2). Dissemination of information shall be understood as publication of the information or its broadcasting, its inclusion in professional references, public addresses, applications to State officials, as well as its communication in other forms, including orally, to at least one another person (Section 2). The Resolution provides that the aggrieved individual or entity must have the right to publish a reply in the same media (Section 5).

Section 7 covers distribution of the burden of proof in defamation cases. The plaintiff must only show that the information in question was disseminated by the defendant. The defendant must show that the disseminated information was true and accurate.

COMPLAINTS

1. The applicants complain under Article 10 of the Convention about a violation of their right to freely express their opinion and impart information. They submit that the domestic courts based their conclusions exclusively on the subjective perception of the contested extracts by the plaintiffs. They contend that the Address only contained their political judgments and opinion and not facts, susceptible to proof. They also refer to the Court's case-law to the effect that the limits of permissible criticism must be wider with regard to the Government than even a politician.

2. The applicants complain under Article 6 of the Convention that they were denied a fair trial. They allege, firstly, that the examination of the case in the courts of the Penza Region could not be objective and impartial and that their challenge to the presiding judge and their request to transfer the case to a different region were dismissed. Secondly, they complain that the first-instance court refused their requests to obtain additional evidence and to order a linguistic expert examination and that it rejected a statement by Mr D. on the ground that he was an interested witness. Lastly, they submit that the appeal court failed to deal with each of the six arguments set out in their points of appeal.

THE LAW

1. The applicants complain under Article 10 of the Convention that the judgments of the domestic courts in the civil defamation action against them impaired their right to impart information. Article 10 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. 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.”

The Government submit that the interference with the applicants' right to impart information was prescribed by law and pursued the legitimate aim of the protection of the reputation and rights of others. They assert that the contested statements in the Address targeted precisely the plaintiffs in the defamation case and that the applicants failed to verify the accuracy of the information. They consider therefore that there was no violation of the applicants' right to express their opinions.

The applicants disagree. They submit that the Address did not disseminate any untrue information. Rather, it was a political appraisal of the functioning of the executive, legislative and judicial powers in the Penza Region as seen by the non-governmental organisation “Civic Union”. The contested extracts were taken out of the context, while the main thrust of the Address was the biased coverage of reforms in the region by the State television channels controlled by the regional government. The applicants assert that they had no intention to disseminate untrue information, that they firmly believed in the accuracy of their statements and grounded them on the data collected by the Penza Region independent trade union “Sotsprof” and the Penza Region human rights organisation. It was precisely the purpose of their petition to President Putin and other senior State officials that a comprehensive investigation into the alleged wrongdoings in the Penza Region be carried out. Finally, they submit that the contested statement did not target any of the plaintiffs personally and therefore these 25 members of the regional government had no standing to sue for defamation. Rather, they should have exercised their right to reply provided for in the Russian Law on Mass-Media.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complain under Article 6 of the Convention about a number of procedural deficiencies. Article 6, in the relevant part, provides as follows:

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

Insofar as the applicants complain that the defamation action was not heard by an impartial tribunal, the Court recalls that the existence of impartiality for the purposes of Article 6 § 1 must be determined according to a subjective test, that is on the basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the court offered guarantees sufficient to exclude any legitimate doubt in this respect (see, e.g. , Wettstein v. Switzerland , no. 33958/96, § 42, ECHR 2000 ‑ XII ). As to the subjective test, the personal impartiality of a judge must be presumed until there is proof to the contrary ( ibid ., § 43). Under the objective test, it must be determined whether, quite apart from the judge's personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is decisive is whether the fear that a particular judge lacks impartiality can be held to be objectively justified ( ibid ., § 44).

In the present case, the applicants do not cast doubt on the subjective impartiality of the judges who sat in their case. As to their objective impartiality and their appearance of independence, the applicants do not contest the manner of their appointment, the duration of their terms of office, or the existence of guarantees against outside pressures (cf., e.g. , G.L. and S.L. v. France (dec.), no. 58811/00, 6 March 2003). In fact, they limit their submissions to a vague and generic allegation of partiality of the courts in the Penza Region. The Court concludes therefore that the applicants' fear as to the judges' impartiality cannot be regarded as subjectively or objectively justified and it finds no appearance of a violation of Article 6 § 1 in this respect.

As to the complaint about the fairness of the proceedings, in so far as it may be understood to concern the assessment of evidence, including statements by witnesses, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, e.g. , Cekic and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I ). Finally, the Court recalls that although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to every argument . Thus, in dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court's decision (see, e.g. , Elo v. Finland (dec.), no. 30742/02, 20 January 2004; Lastuvkova and Mrazek v. the Czech Republic (dec.), no. 72059/01, 17 December 2002).

Turning to the facts of the present case, the Court finds that there is nothing to indicate that the domestic courts' evaluation of the facts and evidence presented in the applicants' case was contrary to Article 6 of the Convention. The applicants were fully able to state their cases and challenge the evidence; all essential evidence was presented; there had been a public hearing at first instance and the courts' decisions were satisfactorily reasoned. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

It follows that this part of the application is 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 admissible, without prejudging the merits, the applicants' complaint, under Article 10 of the Convention, concerning their right to freedom of expression;

Declares inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President