Communicated on 19 September 2016

THIRD SECTION

Application no. 17221/13 Oleg Dmitriyevich FEDCHENKO against Russia lodged on 4 February 2013

STATEMENT OF FACTS

The applicant, Mr Oleg Dmitriyevich Fedchenko , is a Russian national who was born in 1968 and lives in Suponevo , the Bryansk Region .

A. The circumstances of the case

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

The applicant has been editor of a weekly newspaper, Bryanskiye Budni ( Брянские будни ), since he founded it in 1999.

On 9 August 2012 the applicant published an article in Bryanskiye Budni no. 658/31 headlined “Pity the birds” (“ Птичек жалко ” ) [1] , which he wrote under a pen name. In the article he discussed criminal proceedings which were pending against two men called Maksim Kosenkov and Ruslan Pogulyayev on charges of obtaining land by fraud. He also referred to witness statements in criminal proceedings against Anna Stregeleva , the former head of the regional department of the Federal Agency for State Property Management ( Росимущество ) , which had concerned the misappropriation of other plots of land and ended with Ms Stregeleva ’ s conviction. According to those statements, several regional officials, including Bryansk Region Deputy Governor Nikolay Simonenko , had been involved to a certain extent in the events which had constituted the basis of the conviction. Criminal proceedings had been instituted against Mr Simonenko as well, but they had been discontinued and on 23 April 2012 the Bryanskiy District Court had awarded him non-pecuniary damages for wrongful prosecution. The article had a photograph next to it of Mr Simonenko and Mr Denin , the governor of Bryansk Region, in a room with other people.

The article read as follows, in so far as relevant:

“ Maksim Kosenkov and Ruslan Pogulyayev will be on trial in Bryansk. The lads wanted to replicate the deed of the Bryansk thieves from the local administration, but they lacked the power, although they had skills in abundance.

They concocted fake decrees from the Bezhitskiy District Administration on the parcelling of land for the construction of individual houses. They ‘ certified ’ the papers with makeshift stamps and took them to the Bryansk Region Department of the State Register ( Росреестр ). Here they were issued with [extracts from the State registry of real estate] in respect of nine plots of land. Try to register your property at that department. They will wear you down with requests for piles of papers. However, in this case the credulous clerks easily signed the documents after accepting the fakes. Isn ’ t that strange?

As established by the prosecutor ’ s office, the swindlers acquired property rights in this way in respect of plots of lands which belonged to the category of indivisible State property. Their market value exceeded 6,400,000 roubles. The lads face up to ten years ’ imprisonment for this. Pity the birds. They could be doing good deeds, raising their kids. However, they got carried away by the example of the big Bryansk thieves and failed to take into account that the latter were protected from all sides – by the powers that be, the party, relations, and so on.

At least we know now what sentence Bryansk Region residents Denin and Simonenko could be serving. This newspaper has several times dealt with the material of the criminal case which led to Simonenko spending a year detained at Matrosskaya Tishina [the SIZO no. 1 remand prison in Moscow] and who happily got out with a million in compensation. It looks like very few people understood that material. We shall have to shake the dust off those volumes once more.

If you go from Bryansk to the village of Michurinskoe , before the village to the left you will see a field and an orchard which caught the fancy of the Bryansk thieves from the authorities ( воры от власти ). There are almost 66 hectares of land there. Having become skilled at the misappropriation of land, the thief-officials and a deputy decided to pocket that billion. And to multiply it. The thing is , they were going to build cottages there and sell them at triple the price. It is easy to turn a billion into three or five in that way.”

The article further referred to witness statements in the criminal proceedings against Ms Stregeleva , which concerned the misappropriation of plots of land from orchards that constituted federal lands. According to the article, it could be seen from the material in the criminal case that Deputy Governor Simonenko had said at a meeting that “the issue with the orchards was agreed upon with the governor”. The last paragraph of the article contained the following sentence:

“Strangely enough, citizens Denin and Simonenko are still at large.”

Mr Simonenko brought an action for defamation against the applicant and sought damages in the amount of 300,000 Russian roubles (RUB). He claimed, in particular, that the following passages were untrue and damaging to his honour and reputation:

1. “However, they got carried away by the example of the big Bryansk thieves and failed to take into account that the latter were protected from all sides – by the powers that be, the party, relations, and so on”;

2. “ At least now we know what sentence Bryansk Region residents Denin and Simonenko could be serving. ”

3. “... caught the fancy of the Bryansk thieves from the authorities ...”

4. ... Having become skilled at the misappropriation of land, the thief-officials and a deputy decided to pocket that billion. And to multiply it.”

On 26 September 2012 the Bryansk District Court of the Bryansk Region dismissed the claim. The court noted that in the article the author had expressed his opinion and made suppositions with regard to procedural documents in the criminal case against Ms Stregeleva and the actions of certain participants in the proceedings. It further found that the first, third and fourth sentences quoted above could not be considered as damaging to the claimant ’ s honour and reputation as he was not the only official in the Bryansk administration and it was not clear from the article that the author had meant him exactly. The court also noted that the fourth sentence did not constitute an assertion and had neither a legal nor a literal meaning. As regards the second sentence, the court found that the claimant had failed to prove that he was the one referred to in the passage as many people with the surname Simonenko lived in the Bryansk region. There had also been other people apart from the claimant in the photograph published next to the article. Furthermore, the sentence in question had not contained information about any facts but had merely expressed the author ’ s opinion and his suppositions.

Mr Simonenko appealed.

On 27 November 2012 the Bryansk Regional Court set aside the judgment, allowed the claim against the applicant, ordered him to publish a retraction within 15 days of the judgment ’ s entry into force, and awarded the claimant damages of RUB 5,000 (approximately 125 euros).

The appellate court found that the passages in question had definitely referred to Mr Simonenko as his photograph had been published next to the article and because of the use of the expressions “thieves from the local administration”, “thieves from the authorities” and “thief-officials” in connection with the criminal proceedings against Mr Simonenko . It further found that in the light of the introduction to the article “Maksim Kosenkov and Ruslan Pogulyayev will be on trial in Bryansk. The lads wanted to replicate the deed of the Bryansk thieves from the local administration, but they lacked the power, although they had skills in abundance”, it was clear that the first, third and fourth sentences constituted assertions to the effect that the claimant had committed offences and had abused his official position for personal gain. The appellate court found that the second sentence, read together with the sentence “Strangely enough, citizens Denin and Simonenko are still at large”, constituted an assertion that Mr Simonenko should be punished for the offences he had committed. The information was thus presented by the author as a statement of fact.

The appellate court also noted that according to the dictionary, “thief” meant a person who stole or a criminal who practised theft. It went on to conclude that the above passages, which contained negative judgments, were insulting and discrediting to the moral character of the claimant. They also diminished his business reputation, portrayed him negatively as a person engaged in criminal activity, as a State official who abused his powers for mercenary ends, and created a wrong perception about the claimant in the eyes of society as both a citizen and a deputy governor of the Bryansk Region. The appellate court therefore found that all four sentences in question were damaging to the honour and reputation of Mr Simonenko .

On 27 December 2012 the Bryansk Regional Court refused the applicant leave to lodge a cassation appeal.

B. Relevant domestic law and practice

For a summary of the relevant domestic law and practice see Fedchenko v. Russia , no. 33333/04 , §§ 17-20, 11 February 2010.

COMPLAINT

The applicant complains under Article 10 of the Convention that the judgment of the Bryansk Regional Court of 27 November 2012 violated his right to express his opinion and to impart information and ideas on matters of public interest .

QUESTIONS TO THE PARTIES

1. Having regard to the publication of the article “Pity the birds” in the newspaper Bryanskiye Budni , was the interference with the applicant ’ s freedom of expression, in particular his right to impart information and ideas, justified under Article 10 § 2 of the Convention?

2. The Government are requested to provide copies of the following documents:

(a) the final judgment convicting Ms Anna Stregeleva , the former head of the regional department of the Federal Agency for State Property Management, in the criminal case referred to in the article;

(b) the decision to discontinue criminal proceedings against Mr Nikolay Simonenko ;

(c) the decision of the Bryanskiy District Court of 23 April 2012 awarding Mr Simonenko non-pecuniary damages.

[1] . Refers to a quote from a well-known Soviet comedy Кавказская пленница ( Kidnapping Caucasian Style ). One of the characters listens to a fable about a bird that flew too close to the sun, burned its feathers and fell to the ground. He starts crying and when asked why he says “I feel sorry for the bird” ( Птичку жалко ).