Communicated on 22 November 2017

THIRD SECTION

Application no. 24922/15 Andrey Borisovich STOLBUNOV against Russia lodged on 24 April 2015

STATEMENT OF FACTS

The applicant, Mr Andrey Borisovich Stolbunov , is a Russian national, who was born in 1972 and lives in Cliffside Park, United States of America. He is the head of the non-governmental organisation MOO “ Spravedlivost ”.

A. The circumstances of the case

1. Background to the case

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

At the request of Ms L., the chief executive officer of the OAO “ Opytnyy zavod ‘ Stroydormarsh ’ ” (“the plant”), an enterprise manufacturing vehicles, the applicant carried out an investigation into the way the plant had been taken over. According to the results of the inquiry, Mr P . K., Mr D.K., Mr M., Ms M. and Mrs V. had been involved in the misappropriation of the plant. He reported the results of the investigation at a press conference and published three editorial articles on this subject on the MOO “ Spravedlivost ” ‘ s web-site.

2. Press conference on 10 July 2008

On 10 July 2008 the Rosbalt media outlet organised a press conference on the takeover of the plant. The applicant, Ms L. and Mr Kar . ( who was also affected by the situation at the plant) participated in the conference. The applicant took the floor and reported about his investigation into the takeover as follows:

“We have gathered here today to discuss the raider attack against [the plant] which happened many years ago. The major part of shares in the plant belonged to its staff.

The staff fought, but to no avail, against a criminal group who, let ’ s have it straight, attacked the plant using all possible means. The Criminal Code cannot describe all these crimes though it contains a comprehensive description of offences. They bribed officials, resorted to extortion, threats.

About a year and a half or two years ago we carried out investigation of this situation and it has been improving since then. We managed to find enough evidence confirming involvement of particular persons in these crimes ...”

3. Publications on the Internet

On 5 August 2008, 21 April 2009 and 22 April 2010 the applicant published on MOO “ Spravedlivost ” ‘ s web-site three articles under the following headings: “Takeover of the OAO “ Opytnyy zavod ‘ Stroydormarsh ’ ”, “Dissenters ’ initiative: Mr P. K. and others yearn for justice”, and “The Stroydormash plant ’ s sale has become a classic example of illegal takeover”. The relevant passages of the first and second articles read as follows:

“The facts indicate that the illegal takeover was organised by Mr P. K., the deputy head of government and the minister of transport of the Moscow Region, and Mr M., the first deputy of the minister of transport of the Moscow Region.

The fact of the raider attack was established by the court (see annex 2 ..., annex 3... ) ...

The plant was taken over according to a classic takeover scheme ...

According to Ms L., the major shareholder and the chief executive officer of [the plant], Mr P. K. had met her in August 2002 and had insisted on the plant ’ s sale... After the shareholders had refused to sale the majority share in the plant, the group of persons associated with ‘ Mr P. K. ’ s family” carried out the illegal takeover of the plant.

The group falsified the shareholders ’ register ...

Despite the obvious signs of a crime, the Khimki town police rejected Ms L. and other shareholders ’ requests to initiate criminal proceedings against the raiders. It is highly probable that it happened because Mr M., a close friend of Mr P.K. and his first deputy, was the first deputy prosecutor of the Moscow Region as of the date of takeover and his spouse, Mrs V., was personal assistant of the [plant ’ s] pseudo-director B.

The raiders sold the plant ’ s property to the affiliated companies via persons controlled by them... the transaction presumed the sale of the property to the companies specifically registered for this purpose. All above mentioned persons were de facto engaged in the transaction and are controlled by Mr P. K. ’ s group.

... Ms L. and other shareholders had to defend their interests before the courts...

However it is impossible to return the property to the legitimate owners ... because the raiders obtained judicial decisions which became res judicata on the ground of falsified documents with the assistance of the corrupted judges in complete secrecy from the shareholders and legal representatives of the plant. They used these decisions to prove that they are good faith buyers of the plant.

... During the above ‘ closed-door ’ judicial proceedings the interests of the plant were ‘ defended ’ by Ms M. who produced a falsified power of attorney signed by the ‘ pseudo-director ’ ...

... MOO ‘ Spravedlivost ’ and the plant ’ s shareholders have information about Mr P. K. ... and Mr M. ’ s ... involvement in the illegal takeover of [the plant] ...

Their participation in the takeover is confirmed by the following facts (see annex no. 7, “Participation of Mr P. K. and Mr M. in the [plant] ’ s takeover via companies affiliated with them):

Mr P.K.:

1) P. K. was personally interested in the takeover because his son (Mr D. K.) helped him to de facto founder and owner of the OAO ‘ MPTI Stroydormash ’ which is situated near the plant”. Mr P. K. declared his intention to extend the territory belonging to his enterprise and asked in Ms L. in terms of ultimatum to sell him her shares in the [plant] for cash.

2) The OAO ‘ MPTI Stroydormash ’ s directors are Mr P. K. ’ s close relatives and Mr Kov ., his person of trust.

3) The OAO ‘ MPTI Stroydormash ’ s directors carried out the takeover of the plant, including taking control over the plant by force.

4) Mr P. K. is de facto owner of a company which received property stolen by raiders from the plant ...

Mr M.:

1) Mr M., the first deputy prosecutor of the Moscow Region, prevented criminal proceedings being brought by the [plant] ’ s shareholders...

2) Mrs V. and Mr M. provided legal support for the takeover ... They also represented raiders at commercial courts. Mrs V. and Ms M. are wife and daughter of Mr M., ex-first deputy prosecutor of the Moscow Region and the first deputy minister of transport for the Moscow Region.

3) Mrs V. and Ms M. work in a law firm located in the territory OAO ‘ MPTI Stroydormash ’ belonging to Mr P. K.

... The shareholders are afraid of further raiders ’ attempts to conceal the takeover and theft of the [plant] ’ s property using corruption schemes.”

In the third article the applicant described the defamation proceedings against him as follows:

“Someone attempted to accuse the director and activists of MOO ‘ Spravedlivost ’ of defamation. Who are the claimants? The same characters which had been revealed during investigations initiated by MOO ‘ Spravedlivost ’ : unmercenary ( бессеребрянник ) minister of transport of Moscow Region Mr P. K., who can hardly survive on his modest salary of a State official and his son D., leasing specialist, and, by an odd coincidence, a very successful businessman who works in the sphere of public transport in Moscow Region, and who, according to mass media, has got caught laundering 250 million shekels by foreign security services ...

However, for obvious reasons, the representatives of the Moscow elite did not inform the investigator that there was another huge file with judicial decisions. According to these decisions the deceived shareholders were ‘ downtrodden ’ victims in this situation rather than Mr M. and Ms V. ’ s clients. Their names were unlawfully deleted from the shareholders ’ register and then other persons ’ names were added. After that the plant ’ s property was seized and, without consent of legitimate shareholders, it was sold to ‘ good faith buyers ’ , which turned to be ‘ shell companies ’ from another region, for next to nothing.

Among ‘ new ’ shareholders, members of the board, and the chief executive officer of the plant were ex-employees and existing employees of OAO ‘ MPTI ‘ Stroydormash ’ where D. K. was the chairman of the board. Mrs V., mentioned above, whose office was at the ‘ MPTI ‘ Stroydormash ’ s premises, defended the raiders at courts. ”

4. Defamation proceedings

Mr P. K., Mr D. K., Mr M., Ms M. and Mrs V. initiated defamation proceedings against the applicant.

On 3 December 2013 the Khimki Town Court of the Moscow Region allowed their claim. The court cited the articles and the applicant ’ s speech and held as follows:

“By using the above specific wording and context in his speech at the press-conference on 10 July 2008 and then in the editorial articles of 2008, 2009 and 2010, by acting through a non-governmental organisation and by taking advantage of the political environment in the country encouraging fight against corruption, [the applicant] has created a persuasive image of claimants as criminals.

The analysis of speeches at the press conference and impugned articles shows that Mr Stolbunov , Ms L. and Mr Kar ., in cooperation with MOO ‘ Spravedlivost ’ , disseminated information on Mr P. K., Mr D. K., Mr M., Ms M. and Mrs V. ’ s involvement in serious crimes against public security, the State and State service, crimes against property and person, which carry negative and humiliating connotation, obvious for press conference participants and readers.

According to the opinion of the linguistic expert, [the applicant ’ s] ... statements made during the press conference... are of accusatory nature...

... In his speech Mr Stolbunov described MOO ‘ Spravedlivost ’ s activities and the situation with [the plant] in general terms...

The term “criminal activity” is usually described as revealed negative information (data) indicating a violation of the law. Such data have been found in Mr Stolbunov ’ s ... statements.”

The court further referred to the defamatory statements made by the applicant, Ms L. and Mr. Kar . with regard to every claimant and held that they had failed to prove their allegations. It held that the applicant had organised a campaign against Mr P. K. and persons close to him and had abused his rights:

“[The above] information has provoked negative reaction of journalists, readers and the public in general. The impugned statements do not urge any discussion and do not contain any critics with regard to the claimants ’ official functions; the defendants do not allege that the claimants did not comply with their duties. On the contrary, in the impugned passages [the defendants] publicly accuse the claimants of illegal takeover and other crimes which relate to their personality rather than their professional duties, references to their positions are only used to encourage media interest.

The court notes that Mr Stolbunov , who has the status of a legal counsel (advocate)..., disseminated information on his colleagues Mrs V. and Ms M...trying to demonstrate that they assist in the commission of crimes against property and justice ...”

The court ordered the applicant to delete the articles from the website, to pay 5,000,000 roubles (RUB) (111,020 euros (EUR)) for non-pecuniary damages and RUB 7,205 (EUR 160) for legal expenses. The applicant lodged an appeal against this decision.

On 27 October 2014 the Moscow Regional Court upheld the Town Court ’ s judgment in full reproducing its reasoning verbatim.

B. Relevant domestic law and practice

Article 29 of the Russian Constitution guarantees freedom of expression.

Under Article 152 of the Civil Code of Russia, citizens may apply to the court for retraction of information discrediting their honour, dignity or business reputation, unless the person who has disseminated such information proves it to be true. A citizen who is the subject of information which has been disseminated and which discredits his or her honour, dignity or business reputation has the right to a retraction and to claim compensation in respect of pecuniary and non-pecuniary damage.

In Ruling no. 3 of 24 February 2005, the Plenary Supreme Court noted that Article 29 § 3 of the Constitution provided that no one could be compelled to express an opinion or belief or be compelled to refrain from expressing them.

Article 1068 of the Civil Code and point 5 of the Ruling no. 3 provide that a legal person or a citizen shall reimburse damage caused by its or his or her employee when exercising his or her job duties (functions).

COMPLAINT

The applicant complains under Article 10 of the Convention about violation of his right to freedom of expression.

QUESTIONS TO THE PARTIES

Was there a violation of the applicant ’ s right to freedom of expression contrary to Article 10 of the Convention? Was the authorities ’ interference with his freedom of expression “necessary in a democratic society”? In particular, was the amount of compensation to be paid by the applicant proportionate?