Communicated on 17 November 2016

THIRD SECTION

Application no. 62670/12 Aleksey Anatolyevich NAVALNYY against Russia lodged on 13 June 2012

STATEMENT OF FACTS

The applicant, Mr Aleksey Anatolyevich Navalnyy , is a Russian national who was born in 1976 and lives in Moscow. He is represented before the Court by Mr R. Akhmetgaliyev , a lawyer practising in Kazan.

The applicant is a political activist, opposition leader, anti-corruption campaigner and popular blogger. The facts of the case, as submitted by him, may be summarised as follows.

On 18 April 2011 the applicant posted an entry on his LiveJournal blog (http://navalny.livejournal.com) containing a link to a video and documents from the Stop the Untouchables ( www.russian-untouchables.com ) website. The site had been created by former colleagues of Mr Sergey Magnitskiy , head of the tax practice at Firestone Duncan, a Moscow-based company providing legal, tax, accounting and audit services to foreign investors in Russia. Mr Magnitskiy had investigated events leading to the largest fraudulent tax refund in Russian history. On 26 December 2007 the head of Moscow tax office no. 28, Ms S., had authorised an overnight transfer of more than 5.4 billion Russian roubles (RUB – over 150 million euros (EUR)). Mr Magnitskiy made several criminal complaints in relation to the refund but on 18 November 2008 he was taken into custody on tax evasion charges. He died in prison a year later. [1]

The applicant ’ s blog post was entitled “You need to spend 14 minutes of your time watching this video” and began:

“It is a duty of every honest citizen to spread [the video].

This is the continuation of a story about the theft of 5.4 billion roubles from the budget. The theft that got Sergey Magnitskiy murdered for investigating it ... The first two episodes featured brave police officers ... This episode is about the humble employees of a tax office. [Ms S.], the head of tax office no. 28, together with her subordinates, authorised a refund of 5,4 billion roubles from the budget (allegedly overpaid corporate tax) into the account of a stolen company. The payment was effected in twenty-four hours ... Later, as if by coincidence, the women with small salaries spent millions of dollars buying real estate in Russia and abroad. Within a month of the fraud, [Ms S.], together with her husband (pictured), registered offshore companies that received 8 million euros into their Zurich bank accounts. [2] She bought a villa on the famous Palm [artificial island] in the United Arab Emirates, two flats in the Kempinski Resort Palm Jumeirah complex ...

I am not going to hide the fact that the Magnitskiy case has deeply affected me. I did not know him, but he was a lawyer, as am I. He investigated corruption and this is what I am trying to do. Magnitskiy did it more efficiently; his efforts benefited society and the country, but brought about his painful death and suffering to his family ...”

The text was followed by a link to a fourteen-minute YouTube video in which the narrator and Mr J. Firestone, the former managing partner of Firestone Duncan, took turns telling the story of the fraud and sudden enrichment of Ms S.:

“[ Narrator:] Meet [Ms S.], the 46-year old head of Moscow tax office no. 28. She is married to [Mr S.] ... a 46-year old employee of a construction company ... According to tax returns filed by [Ms S.] and [Mr S.], between 2006 and 2009 their average family income was 38,381 US dollars per annum. [3] However, their tax returns do not show the millions of dollars they made from the crime that Sergey discovered and they hid in Swiss banks. According to Cypriot company ownership records, on 26 January 2008 – one month after the tax offices illegally refunded the fraudsters more than 5 billion roubles – [Mr S.] incorporated a new Cyprus company named Arivust Holdings Ltd. [Mr S.] then opened two bank accounts for his company with Credit Suisse, Zurich. Bank statements ... show that in less than a month five transfers totalling 7.1 million euros were sent to those accounts. According to legal documents from the British Virgin Islands, [Mr S.] set up a second company, Aikate Properties Inc. This company also opened accounts with Credit Suisse, Zurich. Bank statements show three incoming transfers totalling 750,000 euros and two more incoming transfers totalling 650,000 dollars. These two offshore companies owned by [Mr S.] received the equivalent of 11 million dollars. The amount [Mr and Ms S.] received in just these two companies as a result of the fraudulent tax refunds is 287 times greater than the income they declared for the same time period in their official income tax returns. In addition to the money they received offshore, they received huge amounts of undeclared cash in Russia, allowing them to lead a truly lavish life. They commissioned ... Russia ’ s most prestigious and expensive architect ... to build a countryside mansion, spending 8 million dollars on its construction ... According to the Land Registry, the land for the house [is 6,100 sq. m. and] was purchased in the name of ... [Mr S. ’ s] 85-year old pensioner mother. The land has a market value of 12,212,000 dollars, which is 3,914 years of his mother ’ s official pension.

The estate is located in ... one of the most expensive areas around Moscow. On this land [Mr and Ms S.] built their dream-house – a 1,100 square metre modern mansion ... In order to keep a low profile and avoid unwanted questions, the new construction was never registered with the Moscow Region Land Registry. Officially it does not exist but it is so large it is impossible to hide ... The house, including its land, has an estimated market value of at least 20,212,000 dollars.

[Mr and Ms S.] have also begun buying properties abroad. According to the Credit Suisse records, two months after [Ms S.] had authorised the fraudulent tax refund, ten transfers totalling 471,000 dollars were made for the benefit of [Mr and Ms S.] to purchase a beautiful seaside villa developed by the Project Real Estate Development Group in the seaside village of Bar, Montenegro. Bank statements show that the money used for this was in addition to the money in their offshore companies.

... [Mr and Ms S.] also bought two luxury condominiums at the Kempinski Hotel and Residences Palm Jumeirah [in Dubai]. Extravagant and luxurious, the Kempinski Hotel is the showcase property on The Palm.

Bank records from Credit Suisse confirm [Mr and Ms S. made] down payments of 2.7 million dollars for apartments 428 and 530. According to the Kempinski price list, the two apartments cost 4 million dollars in total. Bank statements show that the money used for this was in addition to the money in their offshore companies. After the fraudulent tax refund of 5.4 billion roubles, [Mr and Ms S.] bought a 20,212,000 dollar Moscow countryside estate, a 700,000 dollar beach house in Montenegro, a seaside villa and two luxury condominiums in Dubai worth 7 million dollars and had the equivalent of 11 million dollars in their offshore accounts. [Mr and Ms S. ’ s] total undeclared income was 38.9 million dollars, or 1,013 years of their official declared income. ”

The narration was accompanied by images of documents relating to property ownership, extracts from company registers, border control records and bank statements.

On 29 June 2011 Mr S. lodged a defamation claim against the applicant in the Lyublinskiy District Court in Moscow. He submitted that he had already divorced Ms S. in 1992. Although they still had a good relationship, they had no jointly owned property or shared business interests. He had received the money from his former business partner, who had paid it into his companies ’ accounts before disappearing. He claimed that he had used that money to purchase expensive properties.

The applicant maintained in court that he had carefully reviewed the documents presented in the video before reposting it and had been satisfied with the credibility and accuracy of its content. He did not download or copy the video but posted a link on YouTube, in the same way he would invite readers of his blog to read a book. He admitted that he had written the comments by the link to the video.

The applicant ’ s counsel asked the court to obtain documents relating to the criminal investigation into the fraudulent tax refund, Mr S. ’ s tax returns, his Swiss accounts, offshore company registration papers, information about his flights to Dubai and properties in the United Arab Emirates, and Land Registry extracts for his land and house in the Moscow Region. The judge agreed to join the documents already available to the file but refused to obtain any documents from foreign jurisdictions. The judge pointed out that Mr S. had not denied opening offshore accounts or purchasing properties but disputed the applicant ’ s allegation that he had used stolen money to do so. Among the joined documents was a final criminal conviction dated 28 April 2009 in which a Mr M. had been found guilty of a fraudulent refund of RUB 5.4 billion committed in conspiracy “with unidentified officers of tax office no. 28 in Moscow”.

On 17 October 2011 the District Court allowed Mr S. ’ s claim in part, finding that the statements (in bold) above were untrue and damaging to his honour and business reputation:

“The commission by the plaintiff of a dishonest act, illegal actions or crimes, which are alluded to in the video and commentary, is not corroborated with appropriate evidence. The court did not see evidence of any criminal cases having been opened against the plaintiff in relation to the facts referred to in the video and commentary, or evidence of a court conviction finding him guilty of a criminal offence. The information about the plaintiff ’ s income in no way indicates that [Mr S.] had committed the illegal acts mentioned in the video and commentary.

Nor did the court see any evidence that on the date the impugned information was disseminated, 18 April 2011, the [applicant] had in his possession reliable information about the commission by the plaintiff of illegal acts or crimes or that the [applicant] had attempted to verify that information.

...

The [applicant ’ s] argument, that the impugned information was previously published on other Internet pages and that section 57 § 3 (6) of the Mass Media Act must apply, does not convince the court: the [applicant ’ s] blog is not a media outlet and, as he stated in court, he copied the video from the YouTube Internet page, which is not a media outlet either; accordingly, the Mass Media Act finds no application.

The [applicant ’ s] argument, that [Mr and Ms S. ’ s] marriage was [only legally] terminated in 2010 meaning that all their property was jointly owned, is of no legal significance in the context of this dispute, in which the plaintiff disputed allegations concerning the commission of illegal acts and crimes of unjust enrichment rather than marrying or divorcing [Ms S.]

...

The [applicant ’ s] assertion, that the plaintiff did not produce evidence showing that the properties had been paid for legally, cannot be accepted by the court because this fact falls outside the scope of the case; besides, the burden to prove the truth of the impugned statements is on the defendant, not the plaintiff.”

The District Court awarded Mr S. RUB 100,000 in respect of non ‑ pecuniary damage and RUB 200 in court fees, and ordered the applicant to post a notice of the judgment on his blog.

In his grounds of appeal, the applicant relied primarily on two lines of defence. Firstly, he claimed that he had not created the video which could be played directly from the YouTube site. The video had been previously posted on Stop the Untouchables and at least one other website. Secondly, the applicant considered that he had been able to establish the truth of the allegations. The fraud had been shown to have happened; Ms S. had been head of the tax office when it had occurred; Mr and Ms S. had been married until at least December 2010 and had owned property jointly; Mr S. had not denied opening offshore accounts and transferring EUR 8 million into them; and the amounts he had received had been several times greater than his officially declared income. The applicant also pointed out that the first ‑ instance court had refused most of his requests for obtaining evidence.

On 22 December 2011 the Moscow City Court dismissed the appeal, endorsing the findings of the District Court.

COMPLAINT

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

QUESTIONS TO THE PARTIES

Were the standards used by the Russian courts to examine the defamation claims against the applicant in conformity with the principles embodied in Article 10 of the Convention (see OOO Ivpress and Others v. Russia , nos. 33501/04, 38608/04, 35258/05 and 35618/05, § 79 , 22 January 2013)? In particular:

(a) Did the courts carry out an analysis of whether or not the applicant ’ s blog post sought to make a contribution to a debate on matters of general interest or public concern, and did they recognise that the proceedings in the present case involved a conflict between the right to freedom of expression and the protection of reputation (see Dyundin v. Russia , no. 37406/03, § 33, 14 October 2008, and Feldek v. Slovakia , no. 29032/95, § 74, ECHR 2001 ‑ VIII)?

(b) Did the courts distinguish between the position of the applicant as an individual blogger and the position of a professional publisher (see Delfi AS v. Estonia [GC], no. 64569/09, § 129, ECHR 2015)?

(c) Did the courts make a distinction between the applicant ’ s own commentary and the contents of the video linked from his blog post (see Godlevskiy v. Russia , no. 14888/03, § 45, 23 October 2008, and Flux v. Moldova (no. 5) , no. 17343/04, §§ 24-26, 1 July 2008)?

(d) Did the courts give the applicant an effective opportunity to adduce evidence to support the allegations (see Novaya Gazeta v Voronezhe v. Russia , no. 27570/03 , §§ 52-56, 21 December 2010 )?

(e) Did the courts distinguish between the standard of proof required in criminal proceedings and that which ought to be observed when expressing someone ’ s opinion on a matter of public concern (see Brosa v. Germany , no. 5709/09 , § 48, 17 April 2014 , and Unabhängige Initiative Informationsvielfalt v. Austria , no. 28525/95, § 46, ECHR 2002-I)?

[1] . For more details, see Magnitskiy and Zharikova v. Russia , nos. 32631/09 and 53799/12.

[2] . Bold-facing added to highlight statements that were subsequently found to be defamatory, see below.

[3] . The italicised statements were challenged by Mr S. as being defamatory, but the courts did not recognise them as such.