AS TO THE ADMISSIBILITY OF
Application no. 34736/03
by Yelena OBUKHOVA and Aleksey NEVINITSYN
The European Court of Human Rights (First Section), sitting on 1 December 2005 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 6 October 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Ms Yelena Mikhaylovna Obukhova and Mr Aleksey Mikhaylovich Nevinitsyn, are Russian nationals who were born in 1963 and 1954 respectively and live in Yaroslavl. The first applicant is a journalist of the Zolotoye Koltso (“Golden Ring”) newspaper published in Yaroslavl and the second applicant is its editor-in-chief. The applicants are represented before the Court by Ms V. Fomina, in-house lawyer of the newspaper. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 17 January 2003 the Zolotoye Koltso newspaper published an article by the first applicant under the headline “A year later the car was seized” (“Через год арестовали автомобиль”). The article was prompted by the following letter written by a certain Ms Polygalova and reproduced in italics in the opening passage of the article:
“On 22 September 2001 my husband, Anatoliy Grigorievich Polygalov, had a traffic accident. Ms Galina Borisovna Baskova, a judge of the [Yaroslavl] regional court, crashed into his car... The traffic police officers did not recognise us guilty and we calmed down. But a year later we received by registered mail a statement of claim, requesting to compensate damage to Ms Baskova in the amount of 75 thousand roubles, and a charging order in respect of our property and our car issued by a judge. We had not been informed of the hearing and we consider that our civil rights were violated as we were convicted in our absence. We feel that Ms Galina Borisovna Baskova is taking advantage of her office and connections in the judiciary”.
The article related the versions of the traffic accident by Judge Baskova (as described in her statement of claim), by traffic police officers, by Mr and Ms Polygalov and by eye-witnesses. It concluded as follows:
“So far the Zavolzhskiy District Court [of Yaroslavl] held three hearings... The next hearing is not fixed yet. Mr and Ms Polygalov remember menacing words uttered by Galina Borisovna [Baskova] immediately after the traffic accident ‘You will buy me a new car anyway!’; they shudder but they will defend themselves to the very end.”
On 7 March 2003 Judge Baskova sued the newspaper, the first applicant and Ms Polygalova for defamation and refutation of untrue information contained in the statement “Baskova is taking advantage of her office and connections in the judiciary”.
On the same day Judge Baskova requested the court to order interim measures, and notably an interlocutory injunction on the newspaper to prevent publication of “any articles, letters or materials about the factual circumstances of the traffic accident of 22 September 2001, as well as about the court proceedings concerning that accident until they [had] finished”. She submitted that the article was published before the examination of the merits of her claim against Mr Polygalov for compensation for damage caused by the traffic accident was finished. As the article ended with the statement that Polygalovs would defend themselves to the very end, she considered that “subsequent court proceedings... could also be reported in the newspaper in such a way so as to confirm the damaging information and conclusions already published by the author”. Under these circumstances she believed that the court’s failure to indicate interim measures would “impede the enforcement of a court judgment: otherwise the newspaper would be able to publish – alongside with the refutation of information damaging to her [reputation] – materials stating the opposite view; as a result, the judicial protection of her violated right would be insufficient”.
On the same day a judge of the Kirovskiy District Court of Yaroslavl issued a decision to indicate interim measures (определение об обеспечении иска). The decision endorsed arguments advanced by Ms Baskova and concluded as follows:
“Pursuant to Article 139 of the Civil [Procedure] Code of the Russian Federation, a court may, at a request of a party to the case, indicate interim measures if a failure to indicate them could impede the enforcement of a court judgment. Having regard to the above, the court considers that Ms Baskova’s request has to be granted.”
The District Court issued – with immediate effect – an interlocutory injunction on the newspaper to publish any articles, letters or other materials concerning the traffic accident at issue and the court proceedings related to that accident until such time as they would be finished. A copy of the injunction was sent to court bailiffs, Ms Polygalova, Ms Baskova, the first applicant and to the newspaper’s office.
The applicants appealed against the injunction.
On 7 April 2003 the Yaroslavl Regional Court upheld the court order of 7 March 2003. It found as follows:
“The regional court considers that in the instant case a failure to indicate interim measures might impede not only the enforcement of the court judgment but also the examination of the [defamation] action.
The arguments in the appeal to the effect that the [injunction] violated the defendant’s constitutional right to impart information cannot be taken into account as the prohibition only covers publication of materials concerning one specific traffic accident... Publication of materials about these facts before the judgment has been made would be contrary to the interests of the justice. The interim measures indicated by the court are proportionate”.
The Regional Court dismissed the appeal.
On 29 April 2003 the Kirovskiy District Court gave judgment in the defamation claim. It did not accept the argument by the newspaper’s lawyer that the contested statement was Ms Polygalova’s subjective opinion which was evident from the introductory expression “we consider that”. The court considered it to be “the author’s allegation... about Ms Baskova’s using her office and connections... in the framework of lodging her claim and obtaining interim measures”. As the defendants could not prove the truthfulness of that statement, the court ordered publication of a rectification in the newspaper.
On 26 June 2003 the Yaroslavl Regional Court upheld the judgment.
B. Relevant domestic law
The Code of Civil Procedure of the Russian Federation
Article 139. Grounds for application of interim measures
“At the request of a party to the case, a judge or a court may indicate interim measures. Such measures may be indicated at any stage of the proceedings if a failure to indicate them could impede or make impossible the enforcement of the court judgment.”
Article 140. Interim measures
“1. Interim measures may include:
...2) an injunction restraining the defendant from carrying out specific actions;
...When necessary, a judge or a court may indicate any other interim measures that correspond to the purposes described in Article 139 of the Code...
3. Interim measures must be proportionate to the plaintiff’s claims.”
Article 144. Revocation of interim measures
“3. ...If the claim has been granted, interim measures remain effective until the judgment has been enforced.”
The applicants complained under Article 10 of the Convention about an unjustified and disproportionate interference with their right to freedom to impart information. They submitted that the injunction de facto hollowed out the principle of public judicial proceedings as regards the proceedings in Ms Baskova’s civil claim. In these proceedings Ms Baskova acted as an ordinary plaintiff rather than in her judicial capacity and the injunction was therefore not required for the maintaining of the authority and impartiality of the judiciary.
1. The applicants complained that the restriction of their right to publish materials concerning the traffic accident involving Ms Baskova was incompatible with Article 10 of the Convention which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government submitted that an interference with the applicants’ right to freedom of expression was “prescribed by law”, notably Articles 139 and 140 § 2 of the Code of Civil Procedure, and pursued the legitimate aim of the protection of the reputation of Judge Baskova. It also served to maintain the authority of the judiciary as the article alleged that Judge Baskova had used her office to secure undue advantage in the civil proceedings. The domestic courts determined that the reputation of Judge Baskova required a heightened protection and thus the interference pursued a pressing social need. The interim measure was proportionate to the legitimate aim as it was strictly limited in its scope and time. Having regard to the accusatory nature of the allegation contained in the publication, a failure to indicate interim measures could have led to further publications and greater damage to Judge Baskova’s reputation. Accordingly, application of such interim measures was of a greater public importance than affording the applicants a possibility for an “endless stirring-up of doubts about the circumstances which were simultaneously being examined in judicial proceedings”. The domestic courts determined that the statement contested by Judge Baskova was untrue and damaging to her reputation.
The applicants disagreed. They submitted that there was no need to afford a special protection to Judge Baskova who sued in her personal capacity. The authority of the judiciary would be better maintained if proceedings were transparent and the general public could form its opinion about them. Secondly, the scope of the interlocutory injunction was greater than that of the defamation claim. Judge Baskova only challenged the statement that she had used her office to her advantage, the remainder of the publication was not contested. However, the injunction prohibited any mention of the traffic accident or of the proceedings in which Judge Baskova was involved. This created a paradoxical situation where the applicants were prevented from reporting on on-going civil proceedings which were conduced in public and could be attended by anyone. Obviously, such a broad prohibition was not necessary in a democratic society.
(a) The Court notes that parties to the domestic proceedings included, among others, the newspaper and the first applicant. The second applicant was not a party and the contested injunction concerned the newspaper rather than the second applicant as a private individual. He cannot claim therefore to be a “victim” of the alleged violation of Article 10 of the Convention.
It follows that, insofar as the application was lodged by the second applicant, it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
(b) The Court considers, in the light of the parties’ submissions, that, insofar as the application was lodged by the first applicant, it raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the first applicant’s complaint concerning an alleged violation of her right to freedom of expression;
Declares inadmissible the remainder of the application.
Søren Nielsen Christos Rozakis
OBUKHOVA AND NEVINITSYN v. RUSSIA DECISION
OBUKHOVA AND NEVINITSYN v. RUSSIA DECISION