AS TO THE ADMISSIBILITY OF
Application no. 5433/02
by Sergey SHABANOV and Sergey TREN
The European Court of Human Rights (Fourth Section), sitting on 23 November 2004 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr A. Kovler,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 10 August 2001,
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, Messrs Sergey Mikhaylovich Shabanov and Sergey Alimovich Tren, are Russian nationals, who were born in 1959 and 1963, respectively, and live in the town of Chernyakhovsk in the Kaliningrad Region. The applicants are businessmen and founders of the Pravo Znat' newspaper (“The Right to Know”). 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.
1. First set of proceedings
On 27 April 2001 the applicants' newspaper published an article under the headline “What the power costs. Part 2” («Сколько стоит власть – 2»). The article described in detail wages and benefits of mid-range employees of the local administration. The relevant extract read:
“For the sake of clarity, let us look at the elements that make up the wages. Let's take, for example, that of the head of the legal department of the administration...
In total... 5,805 roubles.
Not bad for a twenty-year-old professional who recently graduated from a teachers' college.”
On an unspecified date Ms P., head of the legal department of the local administration, brought a civil action against the applicants for the protection of her honour, dignity and professional reputation. She submitted that she possessed higher legal education and over three years of relevant experience and that the article had harmed her authority because it had fomented doubts as to her professional qualification.
On 13 June 2001 the Chernyakhovsk Town Court of the Kaliningrad Region heard the claim and gave its judgment. It found that the applicants had been aware of the identity of head of the legal department and they had intended to expose the specific person, that is Ms P. The court established that Ms P. had been appointed to her position in September 2000 after she had completed a course of higher legal education. It found as follows:
“Having indicated in the article the salary of the head of the legal department and having referred to a twenty-year-old professional just out of college, the [applicants] related untrue information because Ms P. whom the [applicants] described had graduated from a teachers' college four years ago and currently was the head of the legal department with a higher legal education.
The article 'What the power costs. Part 2' implies that municipal employees receive high wages paid out of the budget and cites as an example a young professional with college-level education and no work experience.
The court considers that such information damages the professional reputation and honour of Ms P. because it was disseminated among many readers and leads to the conclusion that the position of the head of the legal department is occupied by an employee who lacks requisite qualification and work experience which undermines the authority of the local administration and Ms P.”
The court ordered the applicants to publish a retraction and pay to Ms P. RUR 300 (EUR 12) each.
On 20 June 2001 both applicants appealed against the judgment of 13 June 2001. They submitted that the information had not been proven to be untrue and that it had not undermined Ms P.'s authority. They also alleged a procedural violation, in that the case had been examined by the bench comprising one professional judge and two lay assessors, of which the lay assessor Ms Kr. had previously participated in a court hearing on 5 February 2001, while by law, lay assessors could only sit in court once a year and no longer than fourteen days.
On 18 July 2001 the Kaliningrad Regional Court upheld the judgment of 13 June 2001. It established that Ms P. had graduated from a teachers' college, but it had happened in 1997 and by the time of her appointment she had also completed higher legal education. The court concluded that the article had meant to cast a shadow of doubt on Ms P.'s professional fitness and it had therefore damaged her reputation. As to the alleged procedural violation, the court held that the applicants had not proved that the lay assessor in question had sat for more than fourteen days and that their allegations had been based on an erroneous interpretation of the law on lay assessors.
2. Second set of proceedings
On 19 January 2001 the applicants' newspaper published an article by Mr V. under the headline “The Barefooted Army” («Армия с мокрыми ногами»). The article related the living conditions of soldiers in a military unit where almost two hundred men fell ill because Mr K., the unit commander, had not provided them with dry footwraps or arranged for a place to dry their boots.
On an unspecified date Mr K. sued the applicants and Mr V. for the protection of his honour, dignity and professional reputation and compensation for non-pecuniary damage. As a proof of the sustained non-pecuniary damage, Mr K. attached to his statement of claim a medical certificate issued by a psychiatrist.
On 13 July 2001 the applicants' newspaper published a follow-up article “Syndromes May Be Different. And There Are Still No Footwraps” («Синдром синдрому рознь. И без портянок»). The article commented on various aspects of Mr K.'s statement of claim. The relevant part read as follows:
“So, our character '...had to visit a psychiatrist on 13 February 2001...'. 'Intellect with no peculiarities', noted the doctor and found that K. had... moderately pronounced asthenia syndrome and prescribed treatment. Asthenia means impotence, a kind of disease. It follows that the commander of the regiment is not quite healthy. Or quite unhealthy?”
Subsequently Mr K. supplemented his original statement of claim with a complaint about publication of information on his state of health which, in his opinion, was an interference with his right to respect for private life.
On 25 September 2001 the Chernyakhovsk Town Court of the Kaliningrad Region gave its judgment. The court established that the facts concerning the soldiers' mass diseases related in the article of 19 January 2001 were accurate and dismissed K.'s action in this part. However, the court established that K. referred to his visit to a psychiatrist in his statement of claim, that only a limited number of persons had access to the case file, and that K. did not consent to publication of his diagnosis in a newspaper. The court concluded that the article of 13 July 2001 violated K.'s personal non-pecuniary rights, notably the right to the inviolability of private life, personal and family secret protected by the Constitution. Relying on Article 151 of the Civil Code, it awarded him RUR 1,500 (EUR 55) and RUR 1,000 (EUR 37) payable by the first and second applicants, respectively.
On 24 October 2001 the Kaliningrad Regional Court upheld on the applicants' appeal the judgment of 13 July 2001. The court dismissed the applicants' arguments that the public should have been aware of K.'s state of health because he was a commander of a military unit.
B. Relevant domestic law
Constitution of the Russian Federation
Article 29 of the Constitution of the Russian Federation guarantees freedom of ideas and expression, as well as freedom of mass media.
Civil Code of the Russian Federation (of 30 November 1994)
Article 150. Incorporeal goods
“1. Life and health, dignity of a person, personal integrity, honour and goodwill, professional reputation, inviolability of the private life, personal and family secrets, the right to liberty of movement and to choose place of temporary and permanent residence, the right to a name, the copyright, other personal non-property rights and other incorporeal goods which a person possesses by virtue of birth or by operation of law shall be inalienable and untransferable by any means...”
Article 151. Compensation for non-pecuniary damage
“If certain actions impairing an individual's personal non-property rights or encroaching on other incorporeal goods have caused him non-pecuniary damage (physical or mental suffering)... the court may impose on the perpetrator an obligation to pay pecuniary compensation for the said damage...”
Article 152. Protection of honour, dignity and professional reputation
“1. An individual shall be entitled to claim, before a court, a refutation of information damaging his honour, dignity and professional reputation unless the person who disseminated the information proves that it is true...
5. The individual about whom the information damaging his honour, dignity and professional reputation was disseminated shall be entitled to claim, in addition to the refutation, compensation for pecuniary and non-pecuniary damage caused by the perpetrator.”
Law on Lay Assessors
On 10 January 2000 the Federal Law on the Lay Assessors of the Federal Courts of General Jurisdiction in the Russian Federation came into force. By section 1 (2) of the law, lay assessors are persons authorised to sit in civil and criminal cases as non-professional judges. Pursuant to section 9, lay assessors should be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay assessors may not be called more than once a year.
Insofar as the first set of proceedings is concerned, the applicants complain under Articles 1, 6 and 10 of the Convention about a violation of their right to freedom of expression because the courts held them responsible for disseminating true information. They also complain that they did not receive a fair trial because the lay assessors had not exercised their duties in full compliance with the law.
As regards the second set of proceedings, the applicants complain under Articles 6, 7, 10 and 13 of the Convention about a violation of their right to express opinions.
1. The applicants complained under Article 6 of the Convention that the Chernyakhovsk Town Court of the Kaliningrad Region as composed on 13 June 2001 had not been a tribunal established in accordance with the law. The relevant parts of Article 6 § 1 read:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by a ... tribunal established by law.”
The Government submit that there were no procedural irregularities in the proceedings because it has not been shown that the lay assessor Kr. served in the district court for more than 14 days in violation of section 9 of the Law on lay assessors.
The applicants respond that the lay assessor Kr. was not drawn by lot as required by section 5 § 5 of the Law on lay assessors and that the general list of lay assessors of the Chernyakhovsk Town Court was not ratified by the regional legislature (section 2 of the Law). They consider therefore that the lay assessor Kr. lacked the legal basis to sit on the bench.
The Court considers, in the light of the parties' submissions, that the complaint 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 complaint 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.
2. The applicants complained that the judgments of 13 June and 25 September 2001, subsequently upheld on appeal, violated their right to impart ideas and information under Article 10 of the Convention which provides 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...
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 submit, without specifying to which judgment their submissions refer, that the domestic courts were guided by Article 152 of the Russian Civil Code which established liability for dissemination of untrue information. They also refer to Article 17 of the Russian Constitution, according to which the exercise of rights and freedoms shall not encroach on other persons' rights. As regards the present application, they believe that the applicants' articles encroached on Ms P.'s and Mr K.'s right to be protected against dissemination of information damaging their honour, dignity and professional reputation.
The applicants disagree. They maintain that the information contained in both articles was true and accurate to the best of their knowledge and that it could not therefore have impaired the plaintiffs' honour or reputation.
The Court considers, in the light of the parties' submissions, that this part of the application 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 complaint 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.
3. Lastly, the Court has examined the remainder of the applicants' complaints as submitted by them.
However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants' complaints about a violation of their right to impart information and about an allegedly unlawful composition of the Chernyakhovsk Town Court on 13 June 2001;
Declares inadmissible the remainder of the application.
Michael O'Boyle Nicolas Bratza
SHABANOV AND TREN v. RUSSIA DECISION
SHABANOV AND TREN v. RUSSIA DECISION