I incorrectly predicted that there's no violation of human rights in OSTANINA v. RUSSIA.

Judgment

THIRD SECTION

CASE OF OSTANINA v. RUSSIA

(Application no. 22169/11)

JUDGMENT

STRASBOURG

17 April 2018

This judgment is final but it may be subject to editorial revision. In the case of Ostanina 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 Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 March 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22169/11) 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, Ms Nina Aleksandrovna Ostanina (“the applicant”), on 1 April 2011. 2. The applicant was represented by Mr A. Strogiy, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3. On 8 March 2017 the complaint concerning freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1955 and lives in Prokopyevsk, Kemerovo Region. 5. On 19 November 2009 in the newspaper “Rossiya” and on 27 November 2009 in the newspaper “Kemerovo” the applicant published an article under the heading “A need for new approaches”. The relevant extracts of the article read as follows:
“Another specific feature of Kuzbass is its dependence on the federal budget. I am not sure (because I am not familiar with that mechanism) but I assume that some of financial resources provided by the centre to Kuzbass are redirected back to Moscow under kickback schemes. It is clear that in the centre there have already been for long time some corrupted officials, including members of the State Duma from the governing party.”...
Kuzbass is a good example of an authoritarian political system which ‘tightens the screws’ and where the fear, unfair elections, restriction on the freedom of expression and on the right to interact with the authorities prevail.”
6. On 30 November 2009 the Electoral Commission of the Kemerovo Region, Kemerovo Region Administration and the Kemerovo Regional Branch of the United Russia Party, the governing party, initiated defamation proceedings against the applicant stating that her article had prejudiced their reputation. 7. On 16 August 2010 the Tsentralnyy District Court of Kemerovo allowed their claim. It held that the applicant had not mentioned the claimants in her publication, however she had implied that they had been responsible for the situation in Kuzbass described above. It further held that the applicant had failed to provide the relevant evidence confirming the statements described above. It also ordered to publish a retraction and to pay 486,146 Russian roubles (about 7,018 euros) in non‐pecuniary damage and legal expenses. II. RELEVANT DOMESTIC LAW AND PRACTICE
8. Article 29 of the Russian Constitution guarantees freedom of expression. 9. Under Article 152 of the Civil Code of Russia, citizens may apply to the court for retraction of information discrediting their honour, dignity or business reputation, unless the person who has disseminated such information proves it to be true. A citizen who is the subject of information which has been disseminated and which discredits his or her honour, dignity or business reputation has the right to a retraction and to claim compensation in respect of pecuniary and non-pecuniary damage. 10. In Ruling no. 3 of 24 February 2005, the Plenary Supreme Court noted that Article 29 § 3 of the Constitution provided that no one could be compelled to express an opinion or belief or be compelled to refrain from expressing them. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
11. The applicant complained under Article 10 of the Convention of a violation of her right to impart information. Article 10 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 and regardless of frontiers ...
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 ...”
12. The Government submitted that the applicant had prejudiced reputation of the claimants, and her freedom of expression had been restricted in accordance with the law in order to protect the rights of others. Moreover, she had failed to provide any evidence confirming her statements. 13. The applicant maintained her complaint. A. Admissibility
14. 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
15. The Court has repeatedly stressed that the freedom of expression enshrined in Article 10 of the Convention has paramount importance as an essential foundation of a democratic society, a basic condition for its progress and the development of every person. Consequently, the Convention provisions securing this right apply not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Axel Springer AG v. Germany [GC], no. 39954/08, § 78, 7 February 2012; and Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts)). 16. Nevertheless, the guarantees or Article 10 of the Convention are not absolute and are subject to possible restrictions, which, however, must be construed strictly, and the need for any restrictions must be established convincingly (see, among other authorities, Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, and Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I). 17. In cases similar to the present one the Court is mindful of the vital role of “public watchdog”, which the press plays in a society based on the values and principles underlying the Convention (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). 18. Further, the Court has consistently held that, in assessing whether there was a “pressing social need” capable of justifying interference with the exercise of freedom of expression, a careful distinction needs to be made between facts and value judgments (see Lingens v. Austria, 8 July 1986, § 46, Series A no. 103; De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997‐I; and Mahmudov and Agazade v. Azerbaidjan, no. 35877/04, § 41, 18 December 2008). 19. The Court notes that the defamation proceedings, leading to the order to publish a rectification of the statements and to the award of non‐pecuniary damages, constituted an interference with the applicant’s rights under Article 10 of the Convention. Furthermore, it was not disputed that such interference was prescribed by law and pursued a legitimate aim to protect the claimants’ reputation. 20. Consequently, it falls to the Court to examine whether the interference was necessary in a democratic society, and, specifically, whether it was proportionate to the aim pursued (see, for example, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999‐I). When assessing the proportionality of an interference, the nature and severity of the penalties imposed are also factors to be taken into account (see Skałka v. Poland, no. 43425/98, § 41-42, 27 May 2003). 21. The Court notes that in the present case the issues raised in the publication were undeniably part of a political debate on a matter of general and public concern: corruption and unfair elections. The Court reiterates in this connection that it has been its constant approach to require very strong reasons for justifying restrictions on political speech (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). 22. The Court considers that, for an interference with the right to freedom of expression to be proportionate to the legitimate aim of the protection of the reputation of others, the existence of an objective link between the impugned statement and the person suing in defamation is a requisite element. Mere personal conjecture or subjective perception of a publication as defamatory does not suffice to establish that the person was directly affected by the publication (see Dyuldin and Kislov v. Russia, no. 25968/02, §§ 43-44, 31 July 2007). The Court notes that the claimants, political institutions, were not directly mentioned in the passages which had been held defamatory. 23. The Court further notes that there is no evidence that the domestic courts performed a balancing exercise between the need to protect the institutions’ reputation and the applicant’s right to impart information on issues of general interest. They merely confined their analysis to the discussion of the damage to the claimants’ reputation without giving any due consideration to the Convention standards. Neither did the domestic courts consider that the “dignity” of an institution cannot be equated to that of human beings. The Court considers that the protection of the above bodies’ authority is a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Kharlamov v. Russia, no. 27447/07, § 29, 8 October 2015). 24. As to the contents of the applicant’s publication, the expressions used therein should be considered rather as value judgments than statements of fact. She described in general terms her assumptions on functioning of the democratic institutions in Kuzbas Region. In particular, she referred to unspecified possibly “corrupted officials” and to “unfair elections” without indicating what elections she meant or why they were unfair. 25. The Court would in any event observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present one, which concerns the statements criticising the local authorities’ actions even where the statements made may lack a clear basis in fact (see Lombardo and Others v. Malta, no. 7333/06, § 60, 24 April 2007). 26. As to the sanction imposed on the applicant, the Court notes that she was ordered to publish a retraction and pay EUR 7,018 in non-pecuniary damage. The Court notes that these sanctions were capable of discouraging the participation of the press in debates over matters of legitimate public concern. 27. In view of the above, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “pressing social need” for putting the protection of the claimants’ reputation above the applicant’s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in the matters of debate of public interest and that the interference was not “necessary in a democratic society”. 28. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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.”
30. The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award her any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention. Done in English, and notified in writing on 17 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Fatoş AracıHelen KellerDeputy RegistrarPresident