EHRM, 14-12-2006, nr. 29372/02

Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.

Article 152 provides that an individual may apply to a court with a request for the rectification of ‘statements’ (‘сведения’) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such statements.

The Resolution (in force at the material time) provided that, in order to be considered damaging, statements (‘сведения’) had to be untrue and contain allegations of a breach of laws or moral principles (commission of a dishonest act, improper behaviour at the workplace or in everyday life, etc.). Dissemination of statements was understood as the publication of statements or their broadcasting, inclusion in professional references, public speeches, applications to State officials and communication in other forms, including oral, to at least one another person (section 2). The burden of proof was on the defendant to show that the disseminated statements had been true and accurate (section 7).

The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Court notes that it is common ground between the parties that the judgments pronounced in the defamation action constituted an interference with the applicant's right to freedom of expression as protected by Article 10 § 1. It is not contested that the interference was prescribed by law, notably Article 152 of the Civil Code, and pursued a legitimate aim, that of protecting the reputation or rights of others, within the meaning of Article 10 § 2. The dispute in the case relates to whether the interference was ‘necessary in a democratic society’.

The test of necessity requires the Court to determine whether the interference corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. In assessing whether such a need exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not however unlimited, but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. The Court's task in exercising its supervisory function is not to take the place of the national authorities, but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their margin of appreciation. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, most recently, Grinberg v. Russia, no. 23472/03, §§ 26–27, 21 July 2005, with further references).

In examining the particular circumstances of the case, the Court will take the following elements into account: the position of the applicant, the position of the plaintiff in the defamation claim, the subject matter of the publication and qualification of the contested statement by the domestic courts (see Jerusalem v. Austria, no. 26958/95, § 35, ECHR 2001-II).

As regards the applicant's position, the Court observes that he was a journalist and founder of a newspaper. It reiterates in this connection that the press fulfils an essential function in a democratic society. Although it must not overstep certain bounds, particularly as regards the reputation and rights of others, its duty is nevertheless to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, § 37; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). Journalistic freedom covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria (no. 1), judgment of 26 April 1995, Series A no. 313, § 38).

The plaintiff in the defamation action, Mr Terentyev, was also the editor-in-chief of a newspaper. It follows from the applicant's publication that Mr Terentyev also organised a public gathering and spoke about his views to the audience. His behaviour suggested that he had courted popular support for his ideas. The District Court noted that Mr Terentyev actively participated in the political life of the town (see paragraph 16 above). Since he was active in this manner in the public domain, he should have had a higher degree of tolerance to criticism (see Jerusalem, § 39, cited above).

The subject matter of the publication was the author's personal experience of talking to a partisan of the Russian nationalist movement who had been present at the meeting organised by Mr Terentyev. The applicant offered his assessment of the current political situation through the prism of his discussion with that woman. That publication was part of a political debate on a matter of general and public concern. The Court recalls in this connection that it has been its constant approach to require very strong reasons for justifying restrictions on political speech, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned (see Feldek v. Slovakia, no. 29032/95, § 83, ECHR 2001-VIII; and Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV).

The Court notes that the scope of the defamation proceedings extended not to the publication in its entirety but solely to the use of the term ‘local neofascist’ in respect of Mr Terentyev. As regards the qualification of that term by the domestic courts, the Court observes that they did not accept the applicant's argument that it was a value-judgment but considered it to be a statement of fact, indicating that Mr Terentyev was a member of a neofascist political party. In the Russian courts' view, being designated a ‘neofascist’ was defamatory for Mr Terentyev as a public figure and the son of the Second World War veteran. As Mr Terentyev was not a member of any neofascist party and the criminal charge of incitement to ethnic hatred was not maintained against him, they held the applicant responsible for having failed to prove the truthfulness of that expression (see paragraph 16 above).

The Court observes, firstly, that the domestic courts, considering the term ‘neofascist’ to be a statement of fact, had never examined the question whether it could be considered as a value-judgment. Their failure to embark on that analysis is accounted for by the state of the Russian law on defamation at the material time. As the Court has already found, it made no distinction between value-judgments and statements of fact, referring uniformly to ‘statements’ (‘svedeniya’), and proceeded from the assumption that any such ‘statement’ was amenable to proof in civil proceedings (see Grinberg, cited above, § 29, and the domestic law cited in paragraphs 25 and 26 above).

The Court further recalls that use of the term ‘Nazi’ — or, as in the present case, a derivative term ‘neo-fascist’ — does not automatically justify a conviction for defamation on the ground of the special stigma attached to it (see Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 43, ECHR 2003-XI).

The Court cannot subscribe to the restrictive definition of the term ‘neofascist’ adopted by the Russian courts, as solely designating membership in a neo-fascist party. It has already noted in respect of a similar term ‘fascist past’ that it is a wide one, capable of evoking in those who read it different notions as to its content and significance (see Feldek, cited above, § 86). In the applicant's publication Mr Terentyev's name was mentioned in the context of a meeting of the Russian nationalist movement. The regional prosecutor determined that the publications in Mr Terentyev's newspaper targeted the Jewish religion and symbols, describing them in an inimical way, and propagated fallacious stories about the ‘world Jewish masonry’ (see paragraph 15 above). Against this background, the Court considers that the term ‘local neofascist’, taken in its context, should be understood in the sense given to it by the applicant, namely describing a general political affiliation with the ideology of racial distinctions and anti-Semitism (see, mutatis mutandis, Scharsach and News Verlagsgesellschaft, cited above, § 39, and also paragraph 28 above).

The Court finds that, contrary to the view of the Russian courts, the term ‘local neofascist’ is to be regarded as a value-judgment rather than a statement of fact. It has been the Court's constant view that, while the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Grinberg, cited above, §§ 30 31, with further references). Nevertheless, even a value-judgment without any factual basis to support it may be excessive. The question therefore remains whether a sufficient factual basis for such a value-judgment existed (see Jerusalem, §§ 44–45; Scharsach and News Verlagsgesellschaft, § 40; and Feldek, § 86, all cited above). In this regard, the Court notes that the applicant offered documentary evidence, including the past issues of the Kolokol newspaper published by Mr Terentyev and several reports by independent experts. Having examined these publications, the experts unanimously concluded to their marked anti-Semitic nature and their propinquity with the ideals of the National Socialism (see paragraphs 19 and 20 above).

In the Court's view, that material may have been relevant to show a prima facie case that the value-judgment expressed by the applicant had been an acceptable comment. Apart from that documentary evidence, the applicant also proposed that a further expert opinion be sought. The domestic courts, nevertheless, refused to consider this evidence and relied instead on a study carried out in the criminal proceedings against Mr Terentyev on the charge of incitement to ethnic hatred. The Court is struck by the inconsistent approach of the Russian courts on the one hand requiring proof of a statement and on the other hand refusing to consider the readily available evidence (see Jerusalem, cited above, § 45). It further recalls that the degree of precision for establishing the well-foundedness of a criminal charge by a competent court can hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, for the standards applied when assessing someone's political opinions in terms of morality are quite different from those required for establishing an offence under criminal law (see Scharsach, loc. cit.; Unabhängige Initiative Informationsvielfalt v. Austria, no. 28525/95, § 46, ECHR 2002-I; and Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 39, 27 October 2005).

In the light of the above considerations and taking into account the role of a journalist and press of imparting information and ideas on matters of public concern, even those that may offend, shock or disturb, the Court finds that the use of the term ‘local neofascist’ for describing Mr Terentyev's political leaning did not exceed the acceptable limits of criticism. That the proceedings were civil rather than criminal in nature and the final award was relatively small does not detract from the fact that the standards applied by the Russian courts were not compatible with the principles embodied in Article 10 since they did not adduce ‘sufficient’ reasons justifying the interference at issue. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them for restrictions on debates of public interest and that the interference was disproportionate to the aim pursued and not ‘necessary in a democratic society’.

There has been, accordingly, a violation of Article 10 of the Convention.

The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage. He did not make a claim for pecuniary damage.

The Government submitted that the applicant's claim was unsubstantiated and excessive.

The Court considers that the applicant has suffered the non-pecuniary damage as a result of the domestic judgments incompatible with the Convention principles. The damage cannot be sufficiently compensated by a finding of a violation. The Court considers, however, that the particular amount claimed by the applicant is excessive. Making its assessment on an equitable basis, the Court awards him EUR 1,000, plus any tax that may be chargeable on that amount.

The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.