Communicated on 31 January 2014

FOURTH SECTION

Application no. 40597/08 Girts RUNGAINIS against Latvia lodged on 4 July 2008

STATEMENT OF FACTS

1. The applicant, Mr Ģirts Rungainis , is a Latvian national, who was born in 1967 and lives in Riga . He is represented before the Court by Mr E. Radziņš , a lawyer practising in Riga .

The circumstances of the case

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

1. Background information

3. The applicant, at the material time, was the Chairman of the Supervisory Board of a Latvian bank – a kciju sabiedr ība (a/s) “ Latvijas Kr ā jbanka ” (hereinafter – Kr ājbanka ). 32.12% of its shares were held by the State.

4. Following the 2002 general election, Mr Laksa, the former President of Krājbanka was elected as a member of the Latvian Parliament ( Saeima ) from a political party “ Latvijas Pirmā Partija ” (the Latvia ’ s First Party , referred to also as the Pastors ’ Party ), established the same year .

5. Between August 2002 and May 2003 a newspaper “ Neatkarīgā Rīta Avīze ” (hereinafter – the NRA) published numerous articles reporting about A. Laksa.

2 . Defamation proceedings against the applicant

(a) Proceedings before the first-instance court

6. On 28 July 28 2003 Mr Laksa lodged a claim against two subsequent publishers of the NRA and t he a pplicant seeking compensation. He alleged that thirty-one false and defamatory articles had been published and indicated that the applicant had provided defamatory information to the press.

7 . A hearing was held on 30 September 2005 and on 3 October 2005 the Riga Regional Court ( Rīgas apgabaltiesa ) delivered its judgment. The claim against both publishers of the newspaper ( a/s “ Preses nams ” and SIA “ Mēdiju nams ”) was granted in part in as much as several articles were concerned, but it was dismissed against the applicant.

8 . The court also ordered a/s “ Preses nams ” to pay compensation to Mr Laksa in the amount of LVL 30,000 (approximately EUR 42,686) and SIA “ Mēdiju nams ” to pay to Mr Laksa LVL 20,000 (approximately EUR 28,547). Mr Laksa ’ s claim for compensation in the amount of LVL 10,000 (approximately EUR 14,228) from the applicant was dismissed.

( b ) Proceedings before the appellate court

9. On 28 May 2007 the Civil Cases Chamber of the Supreme Court ( Augstākās tiesas Civillietu tiesu palāta ), upon appeals by Mr Laksa, a /s “ Preses nams ” and SIA “ Mēdiju nams ”, reconsidered the case and adopted a new judgment. The judgment took immediate effect.

10. The court granted the claim against the applicant and one of the publishers (a/s “ Preses nams ” ) together, in as much as several articles were concerned, but dismissed the claim against the subsequent publisher (SIA “ Mēdiju nams ” ). The court found that the following information published about Mr Laksa was false and defamatory, and that the publisher had to retract it by 1 July 2007:

1. “ ‘ Krājbanka ’ s former management accused of fraud ’ ...

Moreover, during the period f r om the beginning of 2001, 522 , 000 lat i were transferred for advertising and marketing activities regarding the expenditure of which no documentation appears - the relevant contracts, delivery – acceptance deeds etc. ... [T] he transfer of this sum in an unknown direction is actually regarded as ruining the bank ’ s free assets. ... As the Chairman of the Kr ā jbanka ’ s Supervisory Board Ģ irts Rungainis suggested to Neatkar ī g ā ‘ somebody is receiving this paid money back ’ or that Kr ā jbanka ’ s money is being used to create advertising of a completely different kind than that indicated in the documents available. ‘ This is money that has been stolen from the shareholders", stated Ģ . Rungainis . .. Moreover, significant advance payments have been carried out with a term of a year shortly before the change in the Kr ā jbanka ’ s management at the beginning of this year. The Supervisory Board has authorised the performance of an internal audit to discover where these funds have disappeared ... Documents in the possession of Neatkar ī g ā show that the role of A. Laksa in the affair of the strange advertising transfers could be quite significant ... The p ublic r elations unit has dispatched 168 , 000 lat i to who knows whom and who knows where. The Bank ’ s m arketing department stands out even more blatantly. Of a total of 743,000 lati spent, no documentary corroboration exists regarding the expenditure of 356 , 000 lati . ” [ Information published in the NRA , 3 October 2002 edition, article written by R. P ē tersons and E. Lidere “ Krajbanka ’ s former management accused of fraud ”.]

2. “This week, Krājbanka ’ s current officials discovered massive excess expenditure on advertising that was allowed during the period of management of A. Laksa and V. Koziols – evidently previously these persons advertised themselves at Krājbanka ’ s expense.” [Information published in the NRA, 5 October 2002 edition, article written by R. Rozenbergs and U. Dreiblats “The Pastors ’ Party – a Šlesers ’ family enterprise”.]

3. “ ‘ Advertising for the Pastors ’ Party – for Krājbanka ’ s money ’ ...

Zoom , the advertising agency responsible for creating the Latvia ’ s First Party ’ s pre-election campaign is one of the companies to which Krājbanka ’ s former management transferred several hundred thousands of lati at the beginning of this year. The transfer was carried out without documentary certification as a pre-payment for advertising services . Neatkar ī g ā already announced that since the beginning of 2001, Krājbanka has transferred 522 , 000 lat i for advertising and marketing activities in regard to the expenditure of which no documentation is available ... As Ģirts Rungainis, the Chairman of the Kr ā jbanka ’ s Supervisory Board admitted to Neatkarīgā – Zoom was the very agency to which more than 200 , 000 lat i of Kr ā jbanka ’ s funds were transferred at the beginning of this year, whose subsequent expenditure is unknown. ‘ It is possible that this is the money that provided the foundation for the Latv ia ’ s First Party ’ s sizable advertising campaign ’ , admitted Ģ . Rungainis ... [D] ocuments in the possession of Neatkarīgā show that the role of A. Laksa in the affair of the strange advertising transfers could have been really significant ”. [ Information published in the NRA , 12 October 2002 edition, article written by K . P ē tersons and E. Lidere “ Advertising for the Pastors ’ Party – for Kr ā jbanka ’ s money ”.]

4. “The Chairman of the Kr ā jbanka ’ s Supervisory Board , Ģ irts Rungainis confirmed to Neatkarīgā that the founder of the Latvia ’ s First Party ’ s advertising campaign, advertising agency Zoom is one of the companies to which the former management of the Kr ā jbanka transferred more than 200 , 000 lati at the beginning of this year without documentary certification as a pre-payment for advertising services. News has already appeared that since the beginning of 2001, Kr ā jbanka has transferred 522 , 000 lat i for advertising and marketing activities in regard to the expenditure of which no documentation appears - the relevant contracts, delivery-acceptance deeds etc. ” [ Information published in the NRA , 15 October 2002 edition, article written by R. P ē tersons “ Krājbanka ’ s President concerned about his reputation ”.]

5. “ ‘ Crisis within Krājbanka ’ s Management ’ ...

The scandal revolving around Arnolds Laksa, the former President of the Krājbanka , potentially, unlawful activities has reached its culmination ... A. Laksa has a negative opinion on Neatkarīgā ’ s publications to date regarding the action of Krājbanka ’ s former management in transferring hundreds of thousands of lati to advertising firms without documentary verification regarding the expenditure of the money ... Neatkarīgā has already repeatedly written regarding the long-standing battle between Krājbanka ’ s shareholders, in which A. Laksa is accused of potentially unlawful actions on one more than one occasion ... This though does not prevent the f r iends of Laksa from resorting to extreme methods. As Neatkar ī g ā was informed by Ģ . Rungainis ... at the last meeting of the Supervisory Board , a member of ‘ Laksa ’ s group ’ Vilis Dambi ņš asked him in a forthright manner: ‘ Have the folks f r om Ventspils insured your property? ’ ‘ This is an event without precedent – the Chairman of the Bank ’ s Supervisory Board being blatantly threatened! ’ admitted Ģ . Rungainis. He believes that Laksa is now speculating that he will soon be subject to immunity as a member of the Saeima [Parliament] prevent ing him being criminally prosecutor without a majority vote of the Saeima ... Reporting about the evaluation of marketing, advertising and public relations contracts, the Chairman of the Bank ’ s Supervisory Board admitted even though it is necessary to carry out in-depth market research, during the era of A. Laksa various procedures were breached and payments were made whose sums cannot be precisely be determined at present ... Neatkarīgā already wrote that 522,000 lati were transferred for advertising and marketing activities since the beginning of the year 2001 in regard to the expenditure of which no documentation appears – the relevant contracts ... Additionally, doubts lie on A. Laksa regarding the administration of certificate accounts in regard to possible action that is contrary to the interests of both the Bank and the State. ” [Information published in the NRA, 18 October 2002 edition, article written by R. Pētersons “Crisis within Krājbanka ’ s Management”.]

6. “ Neatkarīgā already reported that the actions of A. Laksa as the President of the Kr ā jbanka are being questioned in relation to advertising contracts concluded in the amount of several hundreds of thousands of lat i . These contracts have no documentary corroboration regarding the specific measures connected with the expenditure of the money in question. ” [ Information published in the NRA, 19 October 2002 edition, article written by R. Pētersons, E. Lidere and L. Timma “Repše: the Minister must be morally clean" .]

7. “ Neatkar ī g ā already reported that in 2001, when A. Laksa was still the President of the [ Krājbanka ] , 522 , 000 lat i were transferred without documentation apparently for [ Krājbanka ] advertising and marketing activities, of which 200 , 000 lat i went to advertising agency ZOOM which also happened to be responsible for the [ Latvia ’ s First Party ] pre-election campaign. ” [ Information published in the NRA , 22 October 2002 edition, article written by B. Lulle “ Parties ’ divide money portfolios !”.]

8 . “It is possible that within the term of the powers of A. Laksa 522,000 lati have been transferred for Krājbanka ’ s advertising and marketing activities regarding the expenditure of which the relevant documentation does not appear.” [Information published in the NRA, 22 October 2002 edition, article written by R. Pētersons “Krājbanka goes against Laksa at the Prosecutor ’ s Office”.]

9 . “ Neatkarīgā already wrote that 522,000 lati were transferred in 2001 without any accompanying documentation apparently for [ Krājbanka ] advertising and marketing activities of which 200,000 lati – to advertising agency Zoom which was responsible for creation of the [ Latvia ’ s First Party ] pre-election campaign” [Information published in the NRA, 23 October 2002 edition, article written by B. Lulle “Millionaires compete for power".]

11. The applicant summarised the court ’ s reasoning as follows:

“The court decided that during the period of the Parliament ’ s pre-election campaign increased attention was focused on political parties, including the Latvia ’ s First Party, one of whose candidates for the position of parliamentarian was Arnolds Laksa, former President of Latvijas Krājbanka . The articles were published in the NRA regarding the money that was spent on the First Party ’ s pre-election advertising, connecting the origin of this money with the company Latvijas Krājbanka and its former President Arnolds Laksa.

Likewise, the Civil Cases Chamber of the Supreme Court ascertained that the information, published in nine articles in the NRA regarding the expenditure of the bank ’ s money and transactions, referring to specific sums of money, was provided to journalists by the former Chairman of the Krājbanka ’ s Supervisory Board, Ģirts Rungainis, whose comments were referenced in the article. The Civil Cases Chamber of the Supreme Court indicated that this information, provided by Ģirts Rungainis, did not hold true, something that he had acknowledged himself at the hearing in the first-instance court.

The Civil Cases Chamber of the Supreme Court found that Ģirts Rungainis was guilty of the provision and dissemination of false information and that he should be held liable for this. The journalists who published this information had no reason to doubt its veracity, because it was provided by the Chairman of the Krajbanka ’ s Supervisory Board, Ģirts Rungainis, who undoubtedly generated trust in the veracity of the information provided and regarding the responsibility of the person who provided this information. Accordingly, the journalists concerned had no obligation to check and to verify regarding the conformity of the information provided to the actual situation.

Although Ģirts Rungainis was mentioned as the source of information only in four articles, the court decided to recognise that information provided by him was infringing on the honour and dignity of Arnolds Laksa in nine articles.

The information was recognised as infringing because it alluded to the unlawful actions of the plaintiff whereby it was alleged that Laksa, exploiting his position within the company Latvijas Krājbanka , used its money for his own purposes, for the advertising of himself and the Party represented by him, accordingly generating the reputation of a dishonest person which infringes upon his honour and dignity.”

12 . The court ordered the applicant to pay compensation to Mr Laksa in connection with the nine publications in the amount of LVL 10,000 (approximately EUR 14,228) together with legal interest (6% per year).

13. In addition, the court granted the claim against a/s “ Preses nams ” alone as concerns the following information published about Mr Laksa, which was false and defamatory, and in respect of which a/s “ Preses nams ” had to pay compensation in the amount of LVL 5,000 (approximately EUR 7,114) together with legal interest (6% per year):

“ Laksa became known to the [general] public whilst occupying the chair of the President of the Kr ā jbanka with scandalous financial transactions and business relations with partners who are accused of collaboration with the Russia ’ s special services and even the mafia. ” [ Information published in the NRA , 9 August 2002 edition, article written by D. Lemesonoks and R. Rozenbergs “ Theologians are only occupying the role of the cherry in the cake in the Pastors ’ Party ”.]

14. The applicant and a/s “ Preses nams ” were also ordered to pay Mr Laksa ’ s legal costs in the amount of LVL 495 (approximately EUR 704) and LVL 375 (EUR 533) respectively.

( c ) Proceedings before the Senate of the Supreme Court

15. On 30 January 2008 the Senate of the Supreme Court ( Augstākās tiesas Senāts ), upon appeals on points of law by the applicant, Mr Laksa and a /s “ Preses nams ”, adopted a new judgment, which in essence confirmed the appellate court ’ s judgment, but specified that the applicant alone was responsible for the nine false and defamatory publications and that he was under obligation to retract information contained therein. It followed that a /s “ Preses nams ” bore responsibility for only one false and defamatory publication and had to retract information contained therein.

16. The applicant summarised the court ’ s reasoning as follows:

“The Senate of the Supreme Court indicated that the Civil Cases Chamber of the Supreme Court found that in total 10 out of 31 articles of the newspaper NRA contained false information which infringed upon the honour and dignity of Laksa. In nine cases (based on nine articles) Ģirts Rungainis was recognised as the source of information - the conclusion based on Ģirts Rungainis explanations to the court of the first instance, where he acknowledged the fact of providing of the incorrect information, recognised his mistake and expressed his apologies to Arnolds Laksa and the journalists. The audit, conducted by the company "Deloitte and Touche" did not confirm the information of Ģirts Rungainis, which was also later confirmed by the Prosecutor General ’ s office on the basis of the materials of the Security Police. Ģirts Rungainis in his cassation appeal did not object in substance to these conclusions of the court, as well as he had not indicated any procedural legal norms, on the basis of which these conclusions could be disputed. At the same time the Senate of the Supreme Court pointed out, that Ģirts Rungainis had stressed in his cassation appeal that while being the source of information he could not affect the assessment given by the journalists.

The Senate of the Supreme Court evaluated the evidence provided by the journalists Rozenbergs and Dreiblats and concluded that the information provided by Ģirts Rungainis was not related to the high level management of the " Latvijas Krājbanka " (the Supervisory Board), but related to the then-President of the company " Latvijas Krājbanka " Arn olds Laksa, his honour and dignity. The conclusions of the previous judicial instance were based on the analysed evidences and, as the Senate of the Supreme Court based on its competence, did not examine the issues of the facts, it indicated that these conclusions shall not be revised. The Senate of the Supreme Court held that the conclusions of the Civil Cases Chamber of the Supreme Court were correct and the actual conditions found by the court complied with the provisions of section 2352(a) of the Civil Law.

With regard to Arnolds Laksa ’ s arguments related to the compliance of the judgment with sections 192 and 426 of the Civil Procedure Law, the Senate of the Supreme Court indicated that the claim of Arnolds Laksa against Ģirts Rungainis was examined correctly. Arnolds Laksa himself identified the timeframe (October 2002) within which the publications containing the information provided by Ģirts Rungainis were published and about which he had submitted the claim.

At the same time the Senate of the Supreme Court found that Laksa in fact had nod divided the amount of the liability to be borne by each defendant in accordance with his claim. It was very clear from the claim ’ s part related to the compensation, which was not divided by the number of publications, as well as the claim ’ s part asking to impose an obligation to retract the false information only to the newspaper " Neatkarīgā Rīta Avīze " and its Annex, containing at that time 29 excerpts of the articles. The Senate of the Supreme Court indicated that these facts confirm that for Arnolds Laksa the primary goal was the retraction of the false information related to his honour and dignity, without dividing it into amounts of information per which each defendant should be held liable.

Based on the above-mentioned conclusion the Senate of the Supreme Court decided to evaluate the actual amount of the activities related to the infringement of Arnolds Laksa ’ s honour and dignity, which had been conducted by each of the defendants.”

COMPLAINTS

17. The applicant alleges a violation of Article 10 of the Convention. He submits that he, as the Chairman of the Supervisory Board of Krājbanka , had an obligation to inform public about its activities; these matters related to public concern and contributed to public debate; his expression contained a value judgment and Mr Laksa had refused to comment.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom of expression, within the meaning of Article 10 § 1 of the Convention?

2. If so, was that interference in compliance with Article 10 § 2 of the Convention (see Axel Springer AG v. Germany [GC], no. 39954/08 , 7 February 2012 )?

3. The Government are invited to provide full copies of all judgments, decisions and hearing records within the defamation proceedings, and, if possible, their translations.