I correctly predicted that there was a violation of human rights in SAMOYLOV v. RUSSIA.

Judgment

THIRD SECTION

CASE OF SAMOYLOV v. RUSSIA

(Application no. 1750/11)

JUDGMENT

STRASBOURG

28 May 2019

This judgment is final but it may be subject to editorial revision. In the case of Samoylov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helen Keller, President,Pere Pastor Vilanova,María Elósegui, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 7 May 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1750/11) 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 a Russian national, Mr Valeriy Nikolayevich Samoylov (“the applicant”), on 3 December 2010. 2. The applicant was represented by Mr Ye. Breyeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights. 3. On 25 October 2017 the Government were given notice of the complaints concerning the lack of a public hearing and disclosure of the applicant’s personal information, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1958 and lives in Moscow. From 1995 until his retirement on 21 August 2006 he was a prosecutor of the North-Western District of Moscow. A. Criminal proceedings against the applicant
5. On 29 May 2007 the Moscow city public prosecutor’s office opened a criminal investigation into the recent activities of a group of former and acting law-enforcement officers and officials. 6. On 24 April 2008 the applicant was arrested and remanded in custody pending investigation and trial (see Valeriy Samoylov v. Russia, no. 57541/09, 24 January 2012). 7. On 23 July 2009 the prosecutor completed the investigation in respect of fifteen suspects, including the applicant, and transferred the case to the Moscow City Court. 8. On 5 August the City Court held a preliminary hearing and decided not to allow access to the public for hearings of the criminal case. In particular, the court held as follows:
“[The court] will examine the present case in camera. The case file contains information classified as state secrets and the disclosure of this information might have a serious adverse effect on the interests of society and the State.”
9. On 24 May 2010 the jury delivered a guilty verdict in the applicant’s case. 10. On 9 June 2010 the City Court sentenced the applicant to nine years’ imprisonment and a fine in the amount of 500,000 roubles (RUB). The applicant appealed, complaining in particular about the lack of a public hearing. 11. On 16 November 2010 the Supreme Court of the Russian Federation held an appeal hearing. The court heard the prosecutor, the civil party, the defendants, including the applicant, and their counsel. The court upheld, in substance, and reduced the applicant’s sentence to eight years’ imprisonment. As regards the applicant’s complaint about the lack of public hearing, the court stated as follows:
“... the [trial] court justified its decision to hear the case in camera. The case file contains documents constituting State secrets and the disclosure of such information might entail a serious violation of the [interests] of society and the State.”
B. Civil proceedings instituted by the applicant
12. On 10 September 2009 the main national television channel broadcast a programme on the circumstances of the criminal case against the applicant. The presenter stated that the applicant, a former district prosecutor, lived on unearned income and that the value of his assets significantly exceeded his revenues. He further claimed that the value of the applicant’s house was 2 million United States dollars (USD). The programme featured footage of the applicant’s two-storey house and its interior and the tax declarations of the applicant and the members of his family. A photograph of the applicant in his prosecutor’s uniform was also shown. 13. On an unspecified date the applicant and his wife brought a civil action for damages against the television channel, arguing, inter alia, that the respondent company had failed to obtain their consent for disclosure of their personal data, including the tax information and the footage of their house and its interior. 14. On 18 May 2010 the Ostankinskiy District Court dismissed the applicant’s claims in full. In particular, the court ruled:
“The mass media have repeatedly reported, and continue to report, on the financial situation and revenues of high-ranking officials. Accordingly, the court considers it possible to refer to the case-law of the [European Court of Human Rights] and notes, in particular, that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. [The court referred to Prager and Oberschlick v. Austria (26 April 1995, Series A no. 313).] Regard being had to the above, the court accepts that the exact value of the house owned by the plaintiffs, the exact amount of their incomes and the exact amount of their real property, in the circumstances of the case, are immaterial. The most important issue is that the value of their house does not correspond to their income. ... According to the investment agreement ... the value of the house was estimated at ... USD 60,000 ..., which did not include the cost of the interior, including the installation of a winding staircase and a jacuzzi ... [One of the plaintiffs’ witnesses] submitted that [the applicant] had been offered a reduced price for the house because of his friendship with the management of the construction company ... [The court] finds it incompatible with the standing of the prosecutor. [The court] further takes into account that the plaintiffs had their title to the house registered on the basis of the purchase agreement ... Accordingly, in addition to the amount paid under the investment agreement ... the plaintiffs paid a significant sum of money which exceeded their income ... and the amount they received when they sold their three‐roomed flat ... for the equivalent of USD 50,000 ...
... Pursuant to [the Russian Federal Law on the Mass Media], a journalist must obtain consent for the disclosure of information concerning a person’s private life from that person or his representative, except when such disclosure is necessary for the protection of public interests. [The court] considers that this rule applied when [the journalist] disclosed information concerning the income of the prosecutor’s family. This is justified by the public interest. The question raised in the programme about the public servant’s income and the value of his property is a matter of public interest. The Court considers that [the applicant’s] claims that the respondent party should retract the information presented in the TV show that [the applicant] was involved in criminal activities and had received unlawfully from an entrepreneur USD 500,000 should also be dismissed. ...
... [the journalist] presented in the show evidence contained in the criminal case file, including a certificate showing the plaintiffs’ revenues, video footage featuring the plaintiffs’ house, and excerpts from their telephone conversations. The journalist obtained those materials lawfully, with the investigator’s approval. The journalist assessed that evidence. The veracity of his assessment cannot be subject to verification given that such verification should be carried out [in the course of the criminal investigation]. ... According to Ms Samoylova (the applicant’s wife and a plaintiff), the Moscow City Court is examining a criminal case against [the applicant] ... [The court considers] that the journalist presented to the public his opinion that there is evidence confirming that [the applicant] is implicated in the commission of the offences he is charged with; [the journalist] commented on the criminal investigation, showed evidence collected and assessed it. ...
... The court considers that [the journalist] produced evidence confirming his statements about the [applicant’s] involvement in illegal activities and dismisses the plaintiffs’ claims.”
15. On 20 December 2010 the City Court upheld the judgment of 18 May 2010 on appeal. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
16. The applicant complained that he had not had a public hearing in the criminal proceedings against him, contrary to Article 6 § 1 of the Convention, which reads as follows:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
17. The Government submitted that the court’s decision to hear the case in camera had been in compliance with domestic law and the Convention, as it had been necessary to protect public order and security. The public had been excluded from the trial in order to prevent the disclosure of classified information. Lastly, the Government argued that the applicant had failed to show that the trial held in camera had had an impact on the lawfulness and fairness of the verdict. 18. The applicant maintained his complaint. A. Admissibility
19. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
20. The Court notes from the outset that the principles concerning the right to a public hearing are well-developed in its case-law (see, among other authorities, Gautrin and Others v. France, 20 May 1998, § 42, Reports of Judgments and Decisions 1998‐III; Pretto and Others v. Italy, 8 December 1983, § 21, Series A no. 71; Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80; and, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 40, ECHR 2006‐...). 21. Turning to the circumstances of the present case, the Court observes that in the applicant’s criminal case the City Court ordered a trial in camera, referring to the presence of classified material in the case file (see paragraph 8 above). The Court reiterates in this connection that the mere presence of classified information in a case file does not automatically imply a need to close a trial to the public, without balancing openness with national security concerns. It may be important for a State to preserve its secrets, but it is of infinitely greater importance to surround justice with all the requisite safeguards, of which one of the most indispensable is publicity. Before excluding the public from criminal proceedings, courts must make specific findings that closure is necessary to protect a compelling governmental interest and limit secrecy to the extent necessary to preserve such an interest (see, for example, Pichugin v. Russia, no. 38623/03, § 187, 23 October 2012, and Belashev v. Russia, no. 28617/03, § 83, 4 December 2008). 22. The Court discerns nothing in the Government’s submissions to suggest that those conditions were satisfied in the present case. The City Court did not elaborate on the reasons for holding the trial in camera. It did not indicate which documents in the case file were considered to contain State secrets or how they were related to the nature and character of the charges against the applicant. In any event, in the Court’s view, the measures employed to ensure the protection of State secrets should be narrowly tailored and comply with the principle of necessity. The judicial authorities should thoroughly consider all possible alternatives and give preference to a less strict measure over a stricter one when it can achieve the same purpose (compare Krestovskiy v. Russia, no. 14040/03, § 29, 28 October 2010). The Court notes that in the present case no such effort was made by the trial court. It did not explain why, for instance, only the part of the hearings in which classified documents were examined could not have been held in camera. 23. In sum, the Court concludes that the trial court failed to give due consideration to the applicant’s right to a public hearing. 24. Lastly, the Court is mindful of the fact that the appeal hearing was public. However, as it has ruled on many previous occasions, the lack of a public hearing could not in any event be remedied by anything other than a complete re-hearing before the appellate court (see Riepan v. Austria, no. 35115/97, § 40, ECHR 2000‐XII). 25. An examination of the facts of the present case reveals that the review carried out by the Supreme Court of Russia did not have the requisite scope. It is true that the appellate court was able to review the case as regards questions of law and fact and to reassess the sentence. However, apart from questioning the applicant and other defendants, the court did not take any evidence. 26. Having regard to the above, the Court finds no justification for the lack of a public hearing during the trial in the present case. Nor does it find that such lack of a public hearing was remedied by the appellate court hearing the case in public. There has accordingly been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
27. The applicant complained about the disclosure of his personal information in a television show. He relied on Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
28. The Government contested that argument. They pointed out that the applicant had been a prosecutor and the applicable law had allowed the mass media to publish information concerning his income as part of anti‐corruption measures. The national courts had verified the accuracy of the information concerning the applicant. Relying on the findings of the domestic courts (see paragraph 14 above), the Government considered that the national judicial authorities had conducted a thorough balancing exercise between the applicant’s rights and the journalist’s right to freedom of expression and had given priority to the rights set out in Article 10 of the Convention. 29. The applicant maintained his complaint. He pointed out that at the time of the impugned offence, he had not been a prosecutor, having retired in 2006. Nor had he been convicted of corruption. 30. The Court accepts, and the Government have not argued to the contrary, that the coverage in a television programme of the criminal investigation in the applicant’s case, accompanied by the presentation of his photograph, a revenue certificate and video footage of his house, fall within the scope of the applicant’s private life, within the meaning of Article 8 § 1 of the Convention. 31. The Court further notes that the issue in the present case is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. Relying on principles that are well established in the Court’s case-law (see among numerous other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83-92, ECHR 2015 (extracts); Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-88, 7 February 2012; and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 95‐107, ECHR 2012), it will examine the question whether a fair balance has been struck between the applicant’s right to the protection of his private life under Article 8 of the Convention and the journalist’s right to freedom of expression, as guaranteed by Article 10. 32. Having examined the judgments delivered by the national courts at two levels of jurisdiction, the Court observes that the national judicial authorities clearly recognised the conflict between two opposing interests and carried out a balancing exercise between the competing interests at stake. 33. The Court observes that the national courts established that the impugned television programme contributed to a debate of public interest, informing the public of the criminal investigation into the activities of a group of former and acting law-enforcement officers and officials. It further notes that the domestic courts established beyond doubt that the information challenged by the applicant had sufficient factual basis, given that the journalist had obtained it officially from the criminal case file. The courts considered that the information, as presented in the television programme, was an opinion of the journalist, who had examined the evidence from the criminal investigation and had drawn his own conclusions on that basis. 34. Regard being had to the above, the Court considers that there has been no failure on the part of the Russian State to afford adequate protection to the applicant’s rights set out in Article 8 of the Convention. The national courts made a thorough examination of the matter and balanced the opposing interests involved, in conformity with the Convention standards, and relied on grounds which were both relevant and sufficient (see Axel Springer, cited above, § 88). The television programme was broadcast in the context of a debate on a matter of public interest, thus calling for a high level of protection of freedom of expression, with a particularly narrow margin of appreciation being afforded to the authorities. It was thus justified to find that the public interest in presenting the information in question outweighed the applicant’s right to the protection of his private life. 35. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
37. The applicant claimed 64,400 euros (EUR) (the applicant’s estimate of the payment that was due to him for the work performed while serving a prison sentence) and EUR 967,800 in respect of pecuniary and non‐pecuniary damage respectively. 38. The Government submitted that, should the Court find a violation of the applicant’s rights set out in the Convention, it could make an award in compliance with its well-established case-law. 39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards his claim for non-pecuniary damage, the Court does not consider it necessary to make an award under this head in the circumstances of this case (compare Ibrahim and Others v. the United Kingdom, nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 315, 16 December 2014). It further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‐IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings if the Court finds a violation of the Convention. B. Costs and expenses
40. The applicant also claimed 150,000 Russian roubles (RUB) and EUR 28,950 for the costs and expenses incurred before the domestic courts and the Court. 41. The Government did not comment. 42. Regard being had to the documents in its possession and to its case‐law, the Court considers it reasonable to award the sum of EUR 600 covering costs under all heads. C. Default interest
43. 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. Declares the complaints concerning the lack of public hearing admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

4. Holds
(a) that the respondent State is to pay the applicant, within three months EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of costs and expenses;
(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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 28 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Stephen PhillipsHelen KellerRegistrarPresident