NOVAYA GAZETA A OSTATNÍ proti Rusku

THIRD SECTION

CASE OF NOVAYA GAZETA AND OTHERS v. RUSSIA

(Applications nos. 35023/13 and 25657/15)

JUDGMENT

STRASBOURG

10 January 2023

This judgment is final but it may be subject to editorial revision.

In the case of Novaya Gazeta and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein;

the decision to give notice of the applications to the Russian Government (“the Government”) represented by Mr M. Galperin and Mr A. Fedorov, former Representatives of the Russian Federation to the European Court of Human Rights, and later by their successor in this office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated in private on 29 November 2022,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1. These applications concern civil defamation proceedings brought by public figures against the applicants, who complain under Article 10 of the Convention. The applicant companies were the publishers of two national newspapers: Novaya Gazeta and Vedomosti. Mr Litinskiy, Ms Tagayeva and Mr Kharatyan are journalists. The common facts of the applications, as submitted by the parties, may be summarised as follows. Specific details as regards each application appear in Appendix II below.

2. The applicants wrote or published two articles. Public figures mentioned in the publications considered that certain statements in the articles had tarnished their honour, dignity, reputation, and business reputation and brought civil defamation claims before the domestic courts.

3. The domestic courts in each set of defamation proceedings found for the claimant or claimants and ordered a retraction of the impugned statements. In application no. 35023/13, the domestic courts awarded compensation of non-pecuniary damage to one of the claimants. In application no. 25657/15, they ordered to remove the impugned article from the Vedomosti website (see Appendix II for details). When examining the defamation claims, the domestic courts limited themselves to establishing three elements: (i) whether the defendants had disseminated impugned statements; (ii) whether the statements had been of tarnishing nature; and (iii) whether the defendants had proved the truthfulness of the statements.

THE COURT’S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

4. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

2. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

5. The applicants complained before the Court that the domestic courts’ judgments in the civil defamation proceedings brought against them by public persons had amounted to a disproportionate interference with their right to freedom of expression guaranteed by Article 10 of the Convention.

6. The Government objected that the effective domestic remedies had not been exhausted in application no. 25657/15 as no cassation appeal proceedings had taken place even though the Court recognised the reformed two-tier civil cassation procedure as an effective remedy (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76‑96, 12 May 2015, notified in writing on 4 June 2015). The Court rejected similar objections by the respondent Government in many cases where applicants had lodged their applications before the Court had pronounced the above Abramyan and Others decision (see, among others, Kocherov and Sergeyeva v. Russia, no. 16899/13, § 68, 29 March 2016, and Y.I. v. Russia, no. 68868/14, § 59, 25 February 2020). Given that application no. 25657/15 was lodged twenty‑two days prior to the date of publication of that decision, the Court considers that the applicants were not required to pursue that procedure prior to lodging their application with the Court (see Y.I. v. Russia, cited above, § 60).

7. The applicants’ complaints under Article 10 are neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. The applications must therefore be declared admissible.

8. It is not in dispute between the parties that both sets of civil defamation proceedings complained of amounted to an interference with the applicants’ right to freedom of expression, as well as that each instance of the interference was “prescribed by law” and pursued a legitimate aim of “the protection of the reputation ... of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 160, 27 June 2017).

9. The relevant general principles of the Court’s case-law have been summarised in Bédat v. Switzerland ([GC], no. 56925/08, §§ 48-54, 29 March 2016).

10. When examining the defamation claims against the applicants brought by public figures (see Appendix II below for details), the domestic courts limited themselves to establishing three elements only (see paragraph 3 above). The domestic courts did not assess whether the impugned statements represented value judgments not susceptible of proof rather than statements of fact (see Tolmachev v. Russia, no. 42182/11, § 50, 2 June 2020), or whether such statements should be seen in the context of the claimants’ position as public figures required to display a greater degree of tolerance (see Redaktsiya Gazety Zemlyaki v. Russia, no. 16224/05, § 42, 21 November 2017), or whether the publications had touched upon a matter of public interest (see Fedchenko v. Russia (no. 3), no. 7972/09, § 47, 2 October 2018), or whether they had emanated from third parties (see Nadtoka v. Russia (no. 2), no. 29097/08, § 48, 8 October 2019). The domestic courts appear to have acted on the assumption that the claimants’ respective interests in protecting their reputation prevailed over the defendants’ interest in informing the public, thus failing to strike a fair balance when protecting the two competing values guaranteed by the Convention (see Skudayeva v. Russia, no. 24014/07, § 46, 5 March 2019). Lastly, the domestic courts in the proceedings at stake in application no. 25657/15 ordered the removal of certain statements in the impugned publication from the website of Vedomosti, having paid no heed to the legitimate interest of the public in access to the public Internet archives of the press protected under Article 10 of the Convention (see Węgrzynowski and Smolczewski v. Poland, no. 33846/07, § 65, 16 July 2013).

11. The Court has previously found a violation of Article 10 of the Convention in a large number of cases concerning freedom of the media in Russia for the reason that the domestic courts had failed to apply the Convention standards when deciding on a defamation dispute (see, among many others, OOO Ivpress and Others v. Russia, nos. 33501/04 and 3 others, § 79, 22 January 2013; Kunitsyna v. Russia, no. 9406/05, §§ 46-48, 13 December 2016; Terentyev v. Russia, no. 25147/09, §§ 22-24, 26 January 2017; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia, no. 39748/05, § 46, 25 April 2017; Skudayeva, cited above, § 39; Novaya Gazeta and Milashina v. Russia, no. 4097/06, §§ 66‑73, 2 July 2019; Tolmachev, cited above, § 47; and Rashkin v. Russia, no. 69575/10, § 18, 7 July 2020).

12. Having carefully examined the case materials and the parties’ submissions before it, the Court concludes that the domestic courts did not give due consideration to the principles and criteria laid down in the Court’s case‑law for balancing the right to respect for private life and the right to freedom of expression. They thus exceeded the margin of appreciation afforded to them and failed to demonstrate that there was a reasonable relationship of proportionality between the instances of interference in question and the legitimate aim pursued (see, with further references, Tolmachev, cited above, § 56, and Timakov and OOO ID Rubezh v. Russia, nos. 46232/10 and 74770/10, § 71, 8 September). Nothing in the Government’s submissions indicates otherwise. It thus has not been shown that the instances of interference with the journalists’ freedom of expression were “necessary in a democratic society”.

13. There has accordingly been a violation of Article 10 of the Convention in respect of each applicant and on the account of each set of defamation proceedings complained of.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. The applicants claimed the amounts indicated in Appendix III below.

15. The Government considered the amounts claimed excessive.

16. The Court awards the applicants the amounts indicated in Appendix III below, plus any tax that may be chargeable on the applicants.

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 10 of the Convention in respect of each applicant;
4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova Georgios A. Serghides
Deputy Registrar President

APPENDIX I: LIST OF CASES

APPENDIX II: FACTS

APPENDIX III: ARTICLE 41 OF THE CONVENTION

[1] Approximately EUR 682 at the exchange rate applicable on the date of the submission of the applicants’ claims for just satisfaction, RUB 73,33 to one euro

[2] Ibidem