THIRD SECTION

CASE OF SKUDAYEVA v. RUSSIA

( Application no. 24014/07 )

JUDGMENT

STRASBOURG

5 March 2019

FINAL

05/06/2019

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Skudayeva v. Russia ,

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

Vincent A. De Gaetano, President, Branko Lubarda , Helen Keller, Dmitry Dedov , Georgios A. Serghides , Jolien Schukking , María Elósegui , judges, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 5 February 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 24014/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Anna Aleksandrovna Skudayeva (“the applicant”), on 14 April 2007 .

2 . The applicant was represented by Ms G. Arapova , a lawyer practising in Voronezh. 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 applicant alleged a violation of her right to freedom of expression.

4 . On 3 April 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Impugned article

5 . The applicant is a journalist.

6 . On 18 July 2006 a local daily newspaper , the Kostroma Chronometer ( Хронометр - Кострома ) published in issue no. 29 an article by the applicant entitled “An Unfunny Film” ( Несмешное кино ). The article read, in so far as relevant, as follows:

“In the midst of the corruption scandals rock ing the region, ‘ The Red House ’ is trying to save face at all costs.

For the sake of the ‘ honour of the regiment ’ .

For several years residents of the Kostroma Region have been forced to watch endless ‘ s oap op er a s ’ featu ring major corruption scandals involving the region ’ s authorities.

The first episode of the series , ‘ There is no corruption in the regional administration ’ was released in 2002 , when a criminal investigation was initiated against D.S., the D eputy Governor of the Region. The investigation was opened on suspicion of his having inflict ed moderately grave bodily injuries, as well as – under Article 201 of the Criminal Code a corruption-related provision – susp e c ted embezzlement constituting abuse of public office.

In spite of the serious nature of the criminal charges brought against his deputy, Governor V.Sh . tried to shield his subordinate at all costs, attempting to uphold ‘ the honour of the regiment ’ ( честь мундира ) . But w hil st the scandal -ridden deputy l anguished in his remand prison cell and sat in the court room during the trial, a comfortable chair was quietly awaiting its owner back at ‘ T he Red House ’ ( ‘ красный дом ’ ) .

In February 2003 the Governor sent to judge M. petition no. 134/ gl on a piece of stationery carrying the coat of arms of the Kostroma Region, in which he made a remarkably simple demand: ‘ I f the court finds that the actions with which D.S. has been charged are of a crimi nal nature, I ask you to examine the possibility o f terminat ing the criminal proceedings against him . ’ It is curious that even after the delivery of the verdict finding D.S. guilty, Governor V.Sh . persisted and for a long time refused to dismiss from office the civil servant who had tainted his reputation. He was able to part with such a ‘ promising ’ employee only after the prosecutor of the region had made a n official request to this end ... ”

B. Defamation proceedings against the applicant

7 . On 28 July 2006 the Administration of the Kostroma Region and V.Sh ., Governor of the Kostroma Region, lodged defamation claim s with the Leninskiy District Court of Kostroma (“the District Court”) against the publisher of the Kostroma Chronometer and the applicant , seeking retraction of certain statements and claiming compensation in respect of non ‑ pecuniary damage. The claimants challenged , in particular, the following statements: “ I n the midst of the corruption scandals rock ing the region, ‘ The Red House ’ is trying to save face at all costs” and “ [ i ] n spite of the serious nature of the criminal charges brought against his deputy, the Governor tried to shield his subordinate at all costs, attempting to uphold the honour of the regiment ”.

8 . On 5 October 2006 the District Court partially allowed the defamation claims , finding that one of the impugned statements was untruthful and ordering that a retraction be published and that the applicant and the newspaper pay 500 Russian roubles (RUB) (approximately 1 5 euros (EUR) at the exchange rate applicable at the time ) and RUB 1,000 (approximatel y EUR 30 ), respectively, in compensation for non ‑ pecuniary damage. The judgment read, in so far as relevant, as follows:

“Analysing the article ’ s contents as a whole and the information therein disputed by the claimants , the court concludes that ... the expression ‘ to save face ’ referring to the corruption scandals in the region and endeavours of the administration of the Kostroma R egion is not defamatory for the reason that the criminal prosecution of the heads of the region ’ s executive bodies and unitary enterprises was a known fact . All these events attracted public attention and drew wide public response in the region , re gardless of articles in the press.

The claim of the article ’ s author that the Administration of the Kostroma Region was trying to ‘ save face ’ in the midst of corruption scandals does not imply a statement that this State agency is tr y ing to justify, especially by any unlawful means, any of its actions or those of its employees.

In view of the foregoing , the court finds n o grounds to allow the claims brought by the Administration of the Kostroma Region.

The statements publish ed in the newspaper concerning Governor V. Sh . ’ s attempts to shield , at all costs , the actions o f his subordinate D.S. , who was facing criminal charges , have not been confirmed [as truthful] in the course of the court hearing.

The court has established that on 9 February 2003 Governor V.Sh . sent to federal judge M. a petition seeking terminat ion of the criminal proceedings against D.S . ... The Governor requested that the court examine the possible termination of criminal proceedings against D.S. , taking into account legal norms in force.

‘ Shielding ’ [ выгораживание ] is defined in the dictionary ... as proving that someone is not involved in something , with a view to escaping responsibility.

‘ At all costs ’ [ всеми силами ] means [according to the dictionary] by all means and in every manner.

The Governor ’ s petition does not contain any indications that Governor V.Sh . was tr y i ng to prove to the court that [his deputy] D.S. had not been involved in the crimes he had been accused of and that he was tr y i ng to help him escape criminal responsibility at all costs. The Governor ’ s request meant that, taking into account the legal norms in force, that is to say in accordance with the law, the court [be invited to] examine the possibility of terminating the criminal case , taking into account the time that had e la p s ed since the commission of the offences by D.S. and the information concerning the latter ’ s personal character.

Consequently, the information contained in the article in the part impugned by the claimant does not reflect the truth.

In the court ’ s opinion, the statements disseminated concerning the Governor are of a damag ing nature because they lead a reader to the opinion that he has broken moral and ethical norms, behaved improperly towards society, [and] ignored the requirements of the criminal procedure laws.

Moreover , according to the dictionary ... , ‘ the honour of the regiment ’ implies an ironical attitude to apparent decency and a falsely impeccable reputation. This expression describes a person who, for the sake of personal or narrowly interprete d institutional interests, does not want to wash h is dirty linen in public [and] wishes to maintain decency and a good reputation by a ny means possible .

The defendants failed to provide evidence that would objectively demonstrate that , when sending the petition concerning the termination of the criminal case against D.S. , the Governor was pursu ing his private interests or those of the A dministration of the Kostroma Region.

Accordingly, the [defamation] claims of the Governor of the Kostroma Region regarding the protection of his honour, dignity and business reputation are well ‑ founded i n law and should be granted.”

9 . The applicant and the editor-in-chief of the newspaper appealed against the judgment to the Kostroma Regional Court (“the Regional Court”) referring, inter alia , to the fact that the impugned statements represented value judgments which had a strong factual basis in the form of the Governor ’ s petition to judge M. The Administration of the Kostroma Region also appealed.

10 . On 11 December 2006 the Regional Court rejected the applicant ’ s appeal and upheld the judgment of 5 October 2006 in full . Its reasoning included the following:

“ When deciding on the claims brought by the Governor of the Kostroma Region, the [District] court reasonably concluded that the defendants had not proven in the course of the hearing that the Governor had tried to shield his subordinate by all means and in every manner, that is, at all costs, in order to uphold ‘ the honour of the regiment ’ . T he [District] court therefore reached the correct conclusion that the statement in question was untruthful and damag ing for the Governor. This finding by the [District] court is well-reasoned, corresponds to the requirements of law and to the case materials, [and] there are no grounds f o r declar ing it erroneous.

Ms Skudayeva ’ s argument that an author has the right to express her own opinion − value judgments which are not susceptible of proof − cannot serve as grounds for quashing the judgment [of 5 October 2006]. Indeed, Ms Skudayeva , just like any other individual , has a right to express her personal opinion, judgment and a ppraise ment ( суждение ) . However, if personal opinions, judgments or a ppraise ment s contain statements which tarnish a person ’ s honour, dignity and reputation, they must be truthful. Under Article 17 § 3 of th e Constitution of Russia, the realis ation of human rights and freedoms cannot breach the rights and freedoms of others.

Furthermore, the statements in question include the statement of fact that ‘ [ i ] n spite of the serious nature of the criminal charges brought against his deputy, Governor V.Sh . tried to shield his subordinate at all costs, attempting to uphold ‘ the honour of the regiment ’ , and proof o f that [statement] is given later ’ . ”

11 . According to the applicant, the bailiffs ’ service receiv ed RUB 500 from her in V. Sh . ’ s favour on 17 January 2007 .

II. REL EVANT DOMESTIC LAW AND PRACTICE

12 . For a summary of relevant domestic law and practice see Cheltsova v. Russia (no. 44294/06, §§ 32-34, 13 June 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

13 . The applicant complained that the domestic courts ’ judgments in the defamation proceedings against her had unduly restricted her right to freedom of expression guaranteed by Article 10 of the Convention, which reads, in so far as relevant, 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 ’ submissions

1. The Government

(a) Observations of 29 July 2013

14 . The Government accepted that there had been an interference with the applicant ’ s right to freedom of expression which, in their view, had been prescribed by law, necessary in a democratic society and proportionate to the legitimate aim of protecting the reputation of V.Sh .

15 . The Government insisted that the right to disseminate information was not absolute and m ay be restricted in accordance with the law with a view t o protecting the reputation of third parties , in particular . The y pointed out that Russian law – namely Article 23 of the Constitution, Article 152 of the Civil Code , and Resolution no. 3 of the Plenary Supreme Court – was in full compliance with the Convention standards and was based on the assumption that it was not permissible to disseminate statements that tarnish a person ’ s honour, dignity or business reputation.

16 . The y argued that the impugned statements regarding Governor V.Sh . had no factual basis. The domestic courts had correctly found that the Governor ’ s petition to judge M. had not contained any in dic ation that Governor V.Sh . had tried to convince the judge of D.S. ’ s innocence or had tried to help the latter to escape criminal responsibility at all costs. The petition had requested that the judge consider , in accordance with the law , whether it would be possible to terminate the criminal proceedings against D.S. in view of the time that had e lapsed since the da t e when D.S. had committed the offences and tak in g into account both his character and in particular his professional qualities. The domestic courts had also analysed the expression “ the honour of the regiment ” and had correctly concluded that the defendants , including the applicant, had not proven the veracity of the impugned statements in the course of the defamation proceedings.

17 . The domestic courts had correctly interpreted the impugned statement concerning Governor V.Sh . as a n alleged statement of fact that was devoid of any fa ctual basis, not a value judgment . The article had not mentioned the fact that it in c lud ed value judgments by the journalist. I t had been written in an affirmative style, not as an a ppraise ment.

18 . The Government further submitted that it was primarily for the national courts to establish factual circumstances of a case. In sum, they invited the Court to declare the application manifestly ill-founded.

(b) Additional observations of 28 November 2013

19 . The Government argu ed that the domestic courts had established the requisite balance between two competing values , having weighed the applicants ’ right to freedom of expression against V. Sh . ’ s right to reputation.

20 . The District Court had distributed the burden of proof in accordance with Russian law , meaning that it had been incumbent on the claimant to prove the fact of dissemination of the information and on the defendant to prove the veracity of the disseminated statements. The defendants had failed to prove that the impugned statement concerning V.Sh . had been true. The Kostroma Court had correctly rejected as unsubstantiated the applicant ’ s argument that an author had a right to express opinions and value judgments not susceptible of proof.

21 . The Government insisted that “a value judgment without any factual basis to support it may be excessive” (see Novaya Gazeta and Borodyanskiy v. Russia , no. 14087/08, § 40, 28 March 2013). The interference with the applicant ’ s right to freedom of expression had been “necessary in a democratic society” to protect V. Sh . ’ s reputation because the impugned statement could potentially be perceived by readers as an allegation of V. Sh . ’ s involvement in corruption-related activities and his unlawful interference with the administration of justice.

22 . The Government further insisted that the domestic courts had duly taken into account V. Sh . ’ s status as a public person. As a high ‑ ranking civil servant , a governor c ould be expected to possess exemplary moral qualities. Civil servants must enjoy public confidence and, under Russian bylaws, should comply with rigorous ethical standards. A journalist must carefully verify any information to be published. The Government concluded that , “having considered the content of the impugned statements , the negative subjective a ppraise ment of the personality of the Governor of the Kostroma Region, and the offensive nature of these statements contain ing personal remarks about the claimant ”, the applicant had overstepped the limits of acceptable criticism. Criticism, in the Government ’ s view, is one ’ s personal opinion concerning a third party ’ s activities, wh er e as the impugned statements had been statements of fact susceptible of proof.

23 . The Government further argued that the applicant had not suffered a significant disadvantage because the compensation order imposed on her ha d been a very modest one .

2. The applicant

24 . The applicant maintained her complaint. She insisted that the domestic courts had failed to perform a balancing exercise between her right to freedom of expression and V. Sh . ’ s right to reputation as they had failed to take into account the respective positions of Governor V.Sh . and the journalist, as well as the fact that the article had dealt with a matter of public interest, namely, the problem of corruption in the Kostroma Region.

25 . The impugned statement had represented a value judgment on the part of the applicant , namely her subjective appraisal of the fact that Governor V.Sh . had requested that a judge terminate criminal proceedings against his deputy. The applicant had provided evidence before the domestic courts that V.Sh . had indeed sent the petition in question, and her value judgment had therefore had sufficient factual basis and had been made in good faith. The impugned expressions “to shield at all costs” and “ honour of the regiment ” had been employed as rhetoric al device s , which had exemplified the journalistic freedom to use exaggeration or even provocation. The applicant , as a journalist , had had a duty to inform the public of the Governor ’ s attempt to influence a member of judiciary in breach of the principle of separation of powers.

26 . The applicant concluded that the domestic courts had interpreted her journalistic value judgment regarding the moral dimension of Governor V. Sh . ’ s behaviour in his official capacity as a statement of fact , thus imposing an impossible burden on her as a journalist to prove the veracity of words used as rhetoric devices . She also argued that they had failed to provide relevant and sufficient reasons to justify the interference.

B . The Court ’ s assessment

1. Admissibility

28 . The Court further notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2 . Merits

29 . The Court notes that it is common ground between the parties that the District Court ’ s judgment of 5 October 2006, as upheld by the Regional Court on 11 December 2006 (see paragraphs 8 and 10 above), constituted an interference with the applicant ’ s right to freedom of expression guaranteed by Article 10 § 1 of the Convention. The Court is further satisfied that the interference in question was “prescribed by law”, in particular Article 152 of the Civil Code, and “pursued a legitimate aim”, namely “the protection of the reputation or rights of others”, within the meaning of Article 10 § 2 of the Convention. It therefore remains to be examined whether the interference was “necessary in a democratic society”; this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient (see Morice v. France ([GC], no. 29369/10, § 144, ECHR 2015).

30 . The Court emphasises at the outset that the applicant , who is a journalist, was held civilly liable for a n article publi shed in a newspaper. The interference must therefore be seen in the context of the essential role of a free press in ensuring the proper functioning of a democratic society (see, among many other authorities, Lindon, Otchakovsky -Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 62, ECHR 2007 ‑ IV).

31 . The general principles concerning the necessity of an interference with freedom of expression frequently reiterated by the Court have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, § 48, ECHR 2016) , among many other authorities . The general principle s concerning Article 10 and press freedom have recently been summarised in Satakunnan Markkinapörssi Oy and Satamedia Oy , cited above, §§ 124-28).

32 . The Court considers that the following standards established in its case-law − which an interference with the exercise of press freedom must meet in order to satisfy the necessity requirement of Article 10 § 2 of the Convention − are pertinent in the present case.

35 . The Court has already found a violation of Article 10 of the Convention in a number of cases against Russia because the domestic courts did not apply standards that were in conformity with the standards of its case-law concerning press freedom (see OOO Ivpress and Others v. Russia , nos. 33501/04 and 3 others, § 79, 22 January 2013 ; Kunitsyna v. Russia , no. 9406/05, §§ 46-48 , 13 December 2016 ; Terentyev v. Russia , no. 25147/09, §§ 22-24, 26 January 2017; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia , no. 39748/05, § 46, 25 April 2017; and Cheltsova , cited above, § 100 ). It now has to satisfy itself whether the relevant standards summarised in paragraph 33 above were applied in the defamation proceedings against the applicant.

37 . Neither did the domestic courts draw a clear distinction between statements of fact and value judgments. The District Court failed to consider altogether whether the statement impugned by V.Sh . amounted to a value judgment , w i th complete disregard f o r the requirements of section 9 of Resolution no. 3 of the Plenary Supreme Court of the Russian Federation of 24 February 2005, under which value judgments are not actionable under Article 152 of the Civil Code since they are an expression of the defendant ’ s subjective opinion and views and cannot be checked for their veracity (see Cheltsova , cited above, § 32). A t the applicant ’ s insistence, the Regional Court addressed the issue , but only briefly. W ithout providing any in ‑ depth analysis of the nature of the impugned statement , it mere ly concluded that the latter had been a statement of fact susceptible of proof.

40 . Accordingly, there has been a violation of Article 10 of the Convention.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

41 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

42 . The applicant argued that the interference had had a chilling effect on her journalistic freedom of expression and claimed 2,000 euros (EUR) in respect of non-pecuniary damage.

43 . The Government submitted that no award should be made in the absence of a violation of the applicant ’ s Article 10 rights. In any event, the amount claimed was excessive.

44 . The Court awards the applicant EUR 2,000 in respect of non ‑ pecuniary damage.

B. Costs and expenses

45 . The applicant claimed EUR 1,675 in legal fees incurred before the Court (33.5 hours at the hourly rate of EUR 50 ) . She submitted the retainer agreement indicating the hourly rate at EUR 40 and the final invoice indicating the hourly rate at EUR 50. She further claimed EUR 12 [1] that she had paid to the claimant in execution of the District Court ’ s judgment without providing a copy of proof of payment.

47 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not enclose any document as evidence of payment of the judicial award. Accordingly, the Court rejects this part of the claim. As to the remainder of the claims, the Court notes the disc repancy between the hourly rate stipulated in the retainer agreement and the one appearing in the final invoice. This discrepancy, in its view, may be attributed to a clerical error or may be the result of a change in the agreement. In any event, regard being had to the documents in its possession and the above criteria, while satisfied that the applicant incurred certain legal costs in connection with her application , the Court considers it reasonable not to award the amount claimed in full. It thus award s the sum of EUR 85 0 for the proceedings before the Court.

C. Default interest

48 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the application admissible;

2 . Holds that there has been a violation of Article 10 of the Convention;

3 . Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts , to be converted into Russian roubles at the rate applicable at the d ate of settlement :

( i ) EUR 2,000 ( two thousand euros) , plus any tax that may be chargeable, in respect of non-pecuniary damage;

( ii) EUR 85 0 ( eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default peri od plus three percentage points.

Done in English, and notified in writing on 5 March 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Vincent A. De Gaetano Registrar President

[1] . The euro equivalent of the amount awarded to V.Sh . calculated at the exchange rate applicable on the date of submitting the applicant’s just satisfaction claims .