Communicated on 23 January 2017

THIRD SECTION

Application no. 23174/15 Raisa Ivanovna KARPUSHENKO against Russia lodged on 29 April 2015

STATEMENT OF FACTS

The applicant, Ms Raisa Ivanovna Karpushenko , is a Russian national, who was born in 1958 and lives in Yekaterinburg.

A. The circumstances of the case

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

At the relevant time the applicant was a sole-trader ( индивидуальный предприниматель ) and was also running a company providing services the housing management domain ( ЖКХ ). Between June and September 2013 two local newspapers published several articles accusing her of dubious dealings in the housing management domain. Furthermore, a video report was published on the Internet showing a person saying “Raisa Karpushenko , stop robbing us! ”.

In October 2013 the applicant sued the authors of the articles, the newspapers and some others for defamation before the Commercial Court of the Sverdlovsk Region. She lodged a claim under Article 152 of the Civil Code of the Russian Federation concerning protection of her business reputation ( деловая репутация ) seeking compensation on account of non-pecuniary damage, and publication of a retraction.

The applicant challenged in particular the following parts of the articles:

“This year the entrepreneurs working in the area of housing management accumulated debts that are hard to believe or imagine: they managed to misappropriate 83,000,000 roubles [RUB]. For instance, how could Ms Karpushenko , an honest woman, buy more than twenty flats and a hotel, as far as I know? Just think about the above numbers! They don ’ t care about you! They only need your money.”

“... Where one has to deal with some RUB 100,000,000 [in payments for utility services], somehow a million or two could get lost somewhere. These are mere trifles. However, these ‘ small monies ’ would then be nicely used for one ’ s pleasure, to buy a flat or to pay for the modern interior design of a hotel, maybe.”

“... [The applicant] acted deceitfully when she failed to pay 3,100,000 roubles to the town.”

“Prior to the current year, all monthly bills listed on a separate line payment for major restoration work of our blocks of flats. The management company thus transferred all collected monies into the bank accounts of notorious companies [a list of private companies], of which [the applicant] is one of the founders. Over the last three years, RUB 12,800,000 has been transferred to these companies. What was the purpose of this? To find an answer, just visit the common areas of your building. Moreover, according to the information from the Federal Register, [the applicant] owns more than ten flats and lets all of them per day ... Now, make the calculations to see how many years an honest person must work to earn enough to buy these flats. [The applicant] managed to do it in three years ...”

“Raisa kicked everyone out ... One could see that the question asked was uncomfortable for her because it required her to make amends to [a private company ’ s] founders who she had ‘ kicked out ’ ...”

For the applicant the implied meanings of the above phrases were as follows:

- that she and other entrepreneurs had misappropriated RUB 83,000,000; she had acquired in a dishonest manner more than twenty flats and a hotel;

- that she had spent a part of the utility payments she had been charged to collect on personal consumption such as the purchase of a flat or the interior design of a hotel;

- that she had acted deceitfully when she had not paid RUB 3,100,000 into the town ’ s budget;

- that she had dishonestly acquired funds for buying more than ten flats;

- that she had “kicked out” and cheated the founders of a private company;

- that she had stolen from the population of Severouralsk .

The applicant unsuccessfully asked the court to commission a linguistic expert report, which would assist the court in establishing whether the impugned utterances were statements of fact or value judgments, and whether they actually targeted the applicant.

The applicant then commissioned a report from a specialist in the field of linguistics, who considered that the impugned utterances were statements of fact susceptible of being proven. The applicant submitted this report to the court. It appears that the report was admitted as evidence.

By a judgment of 21 March 2014 the court considered that one could claim redress in the form of a court-ordered retraction only in relation to statements of fact; opinions or value judgments were not protected under Article 152 of the Civil Code because they arose from one ’ s subjective views and could not be tested for veracity (that is whether they “corresponded to reality”). The court considered that the impugned materials contained a commentary which constituted Mr I. ’ s (one of the authors ’ ) opinion, in his capacity as a member of the local legislature; the other material amounted to commentaries on the area of housing management services in the town of Severouralsk . Referring to the necessity to secure a balance between freedom to impart information on matters of public interest and maintenance of goodwill, the court dismissed the applicant ’ s claims. The applicant appealed.

On 30 June 2014 the 17th Commercial Court of Appeal upheld the judgment. The applicant appealed on points of law.

On 29 October 2014 the Commercial Court of the Urals Circuit dismissed the applicant ’ s appeal on points of law. The applicant appealed on points of law.

On 6 February 2015 the Supreme Court of Russia dismissed the second appeal on points of law.

It appears that no criminal complaint was ever lodged against the applicant in relation to the allegations made in the articles or the video.

In separate ancillary proceedings, on 16 January 2015 the Commercial Court of the Sverdlovsk Region ordered the applicant to pay the respondents ’ costs in the amount of RUB 440,000 (equivalent to 8,807 euros (EUR) at the time). On 10 April 2015 the 17th Commercial Court of Appeal upheld the judgment.

B. Relevant domestic law and practice

1. Civil Code of the Russian Federation

Article 23 of the Constitution of the Russian Federation guarantees protection of private life, privacy in personal and family affairs, good name and honour . Article 29 protects freedom of thought and expression, together with freedom of the mass media.

Until October 2013 the Civil Code of the Russian Federations contained the following relevant provisions:

“ Article 150: Intangible rights

1. Life and health, the dignity of an individual, personal integrity, honour and good name, business reputation, the inviolability of personal life, personal and family privacy ... belong to an individual by birth or by law, are inalienable and are not transferrable by any other means ...

2. Intangible rights are protected in accordance with this Code and other [relevant] laws ... as well as in such cases and within such limits where the use of the methods for the protection of ... those rights ... flows from the nature of the intangible right breached and the nature of the consequences of such a breach.

Article 151: Compensation for non-pecuniary damage

If non-pecuniary damage (physical or psychological suffering) has been inflicted upon an individual by acts violating his or her personal non-pecuniary rights or encroaching upon other intangible interests belonging to the individual, as well as in other cases set out in law, a court may order the perpetrator to pay monetary compensation for the said damage.

In determining the amount of compensation, the court takes into account the degree of liability of the perpetrator and other relevant circumstances. The court also has to take into account the degree of physical and psychological suffering in the light of the individual situation of the person on whom the damage was inflicted.

Article 152: Protection of honour , dignity and business reputation

1. An individual has a right to claim in court a retraction of the information damaging his or her honour , dignity or business reputation, if the person having disseminated such statements has failed to prove that they corresponded to reality ...

2. If damaging statements were disseminated in the media, they should be retracted in the same media ...

5. An individual about whom damaging information has been disseminated ... has the right, along with the right to request a court-ordered retraction of such information, to ask for damages and compensation for non-pecuniary damage resulting from such dissemination ...

6. Where it is impossible to identify the person responsible for the dissemination of the [defamatory information], the individual concerned has the right to apply to court seeking to have the information in question declared false.”

On 24 February 2005 the Plenary Supreme Court of Russia adopted Resolution no. 3 on judicial practice in cases concerning the protection of the honour and dignity of individuals and the business reputation of individuals or legal persons, in which it reminded the lower courts that they should take into account the provisions of the European Convention on Human Rights and the case-law of the Strasbourg Court. More specifically, in part 8 of the Resolution, the Plenary Supreme Court noted that cases concerning the protection of honour , dignity and business reputation should be differentiated from cases concerning the protection of other intangible rights, the inviolability of which is specifically protected by the Constitution of Russia and other laws and the dissemination of which may cause non ‑ pecuniary damage even if the information in question is truthful and non-defamatory. In particular, in cases concerning the dissemination of information about the private life of an individual, it should be taken into account that unauthorised dissemination of even truthful information concerning private life may lead a court to award compensation for any non ‑ pecuniary damage resulting from the dissemination of such information (Articles 150 and 151 of the Civil Code). The only exception to this rule was when the information about the private life of a plaintiff had been disseminated with the aim of protecting some public interest under part 5 of section 49 of the Media Act. If false information about the person ’ s private life was disseminated, then a defendant could be obliged not only to retract such information, but also to compensate for any resulting non-pecuniary damage under Article 152 of the Civil Code.

By Federal Law no. 142-FZ of 2 July 2013 (in force since 1 October 2013) Articles 150-52 of the Civil Code were amended. They read as follows:

“ Article 150. Intangible rights and goods

1. An individual ’ s life and health, human dignity, personal security, honour and good name, business reputation, intangible private life, intangible home, personal and family privacy, freedom of movement, freedom to choose one ’ s place of residence, a citizen ’ s name and other non-physical goods should not be removed or transferred by any means ...

If necessary, non-physical rights may be protected, for instance, by way of judicial recognition of a violation, by way of a publication of a court decision about such a violation or by way of putting an end to or prohibiting certain actions that violate or would violate protection of non-physical rights or goods ...

Article 151. Compensation in respect of non-pecuniary damage

A court may order monetary compensation in respect of non-pecuniary damage where certain actions violate a person ’ s personal non-physical rights or impinge upon non-physical goods or in other situations prescribed by law, thus causing non ‑ pecuniary damage (physical or psychological suffering) to a citizen ...

Article 152. Protection of honour, dignity and business reputation

1. A citizen may lodge a court action for a court-ordered retraction of information that tarnishes his or her honour, dignity or business reputation, where the person who disseminated such information fails to prove that it corresponded to reality. A retraction or court-ordered retraction should be made in the manner in which the impugned information was disseminated or in a similar manner ...

2. A court-ordered retraction should be made in the same mass media ... In addition to a court-ordered retraction, a citizen has a right to require publication of his or her reply in the same mass media ...”

After October 2013 Article 152 was no longer suitable for claiming non ‑ pecuniary damage on account of defamation against legal entities and entrepreneurs; it was open to them to protect their business reputation by way of seeking a court-ordered retraction of the statements tarnishing their business reputation, by way of publishing in the print media a reply or by way of bringing a court action for losses caused by the dissemination of such statements (judicial overview by the Presidium of the Supreme Court of Russia dated 16 March 2016).

Losses could be substantiated by way of establishing the existence of an established business reputation of a claimant and the effect of the loss of trust on such reputation (reduction of clientele or a competitive disadvantage) (Supreme Court of Russia, decision no. 309-ЭС16-7367 of 18 July 2016).

According to the Supreme Court of Russia, utterances that amount to opinions ( мнения ) or value judgments ( оценочные суждения ) cannot be challenged by way of an action under Article 152 of the Civil Code (decision no. 305-ЭС15-3006 of 10 April 2015, among others).

Pursuant to the new Article 152 of the Civil Code and section 46 of the Mass Media Act (Federal Law no. 2124-1 of 27 December 1991) if an individual considers that an opinion or a value judgment in the mass media affects his or her rights and freedoms, that person may have recourse to the right to reply or comment in the same mass media.

2. Criminal Code of the Russian Federation

In July 2012 Article 128.1 was introduced into the Criminal Code penalising libel and slander, which are defined as dissemination of a priori false information, which tarnishes an individual ’ s honour and dignity or impinges upon his or her reputation. Libel or slander consisting of accusing a person of a serious or a very serious criminal offence are punishable by harsher penalties.

COMPLAINTS

Referring to Articles 6 and 10 § 2 of the Convention, the applicant argues that that her business reputation was tarnished by the impugned articles and the video; that the domestic courts wrongly classified them as opinions and exempted the respondents from establishing the veracity of their statements thereby divesting her of the protective sco pe afforded by Articles 150 and 152 of the Civil Code and denying her compensation on account of non ‑ pecuniary damage; that the authors of the articles had no factual basis for their assertions and that the courts did not verify the existence thereof.

QUESTIONS TO THE PARTIES

1. In so far as the applicant referred to her business reputation, h as there been an interference under Article 8 § 1 of the Convention (see Fürst ‑ Pfeifer v. Austria , nos. 33677/10 and 52340/10, §§ 35-42, 17 May 2016), on account of the court decisions in her defamation case? If yes, was that interference in accordance with the law and ne cessary in terms of Article 8 § 2?

2. At the relevant period of time, d id the applicant have at her disposal an effective domestic remedy for her above complaint, as required by Article 13 of the Convention? In particular:

(a) Were the available domestic remedies, in particular an action under Article 152 of the Civil Code, capable of affording adequate review and adequate redress in relation to opinions or value judgments that impinged upon an individual ’ s business reputation, personal reputation and honour ? In particular, was it possible to claim compensation on account of non ‑ pecuniary damage in this situation?

(b) If not, what other effective and accessible remedy was available to the applicant? For instance, was the procedure under Article 128.1 of the Criminal Code accessible to the applicant or was it dependent on a public official ’ s decision (not) to prosecute a defendant? Would redress available in this procedure have been adequate?