Last Updated on November 22, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 32200/09
Vladimir Ivanovich SHUMSKIY
against Russia
The European Court of Human Rights (Third Section), sitting on 17 September 2019 as a Committee composed of:
Paulo Pinto de Albuquerque, President,
Helen Keller,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 11 June 2009,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vladimir Ivanovich Shumskiy, is a Russian national, who was born in 1977 and lives in the Voronezh Region. He is an advocate. He was represented before the Court by Ms L. Shumskaya, who is also a lawyer.
2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. At the material time the applicant was the legal representative of a company, of which his father was director. In 2006 and 2007, the company was involved in a commercial dispute with an agricultural holding. The applicant and his father alleged criminal conduct on the part of the holding but the police did not find indications of any offence and referred them to a commercial court. The applicant brought the grievances to the prosecutor’s office in the town of Anna in the Voronezh Region which upheld the police’s decision to decline institution of criminal proceedings.
5. On 15 March 2007 the applicant – on behalf of his father’s company – sent a complaint to the Prosecutor General, asking him to intervene “to put an end to corrupt practices” in the prosecutor’s office in the town of Anna. On 31 March 2008 he submitted an online complaint through the website of the President of Russia, claiming that:
“The Prosecutor General’s office simply has no desire to curb outrageously lawless conduct (беспредел) on the part of employees in local prosecutor’s offices, in particular, the prosecutor of the Anna district in the Voronezh Region Mr S[.]”
6. S. sued the applicant in defamation. He submitted that his office had carefully reviewed each of the applicant’s complaints and found that the claims had been unsubstantiated. The allegations of corrupt practices or lawless conduct in his office were false and damaging to his professional reputation. He sought a retraction of the statements and a token amount of compensation in respect of non-pecuniary damage.
7. On 8 July 2008 the Anna District Court in the Voronezh Region granted the defamation claim. It found that neither the applicant nor Ms Shumskaya or the company’s director Mr Shumskiy were able to cite a single instance of “corrupt practices” in the prosecutor’s office. Nor could two annulled procedural decisions – which had been issued by the prosecutor S. and later set aside by a court – furnish an adequate factual basis for the statement about his “outrageously lawless conduct”. The District Court found that the applicant’s allegations had been unsubstantiated and that he was not fulfilling his civic duty to report irregularities but misusing his right to submit complaints to harm the professional reputation of the prosecutor S. The District Court ordered the applicant to pay 100 Russian roubles (less than 3 euros) to S. in respect of non-pecuniary damage and to send a rectification of his statements to the officials concerned.
8. On 11 December 2008 the Voronezh Regional Court upheld the judgment on appeal.
COMPLAINT
9. The applicant complained under Article 10 of the Convention about unjustified interference with his right to freedom of expression.
THE LAW
10. The applicant alleged a violation of 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 …
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 …”
11. The Government submitted that the applicant had not suffered a significant disadvantage by reason of the negligible amount of the award and that the application was inadmissible under Article 35 § 3 (b) of the Convention. The interference with the applicant’s right to freedom of expression had been lawful, had pursued the legitimate aim of the protection of the reputation of Mr S. and had also been necessary because his allegations had been both unsubstantiated and damaging to the reputation of Mr S.
12. The applicant submitted that the requirement to rectify his statement had been subjectively burdensome for him and that he had incurred significant expenses through resisting the enforcement of the judgment over a period of seven years. He did not make submissions on the merits of the complaint.
13. The Court does not need to rule on the question whether or not the applicant has suffered a significant disadvantage because the application is in any event inadmissible for the following reasons.
14. The judgment by which the applicant was found liable for defamation and ordered to pay compensation constituted interference with his right to freedom of expression. That interference was “prescribed by law”, in particular Article 152 of the Civil Code, and “pursued a legitimate aim” within the meaning of paragraph 2 of Article 10, namely that of “the protection of the reputation or rights of others”.
15. As to whether the interference was “necessary in a democratic society”, the Court reiterates that in a democratic society individuals are entitled to comment on and criticise the administration of justice and the officials involved in it. Limits of acceptable criticism in respect of civil servants exercising their powers may admittedly in some circumstances be wider than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions. Moreover, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive, abusive or defamatory attacks when on duty. Public prosecutors are civil servants whose task it is to contribute to the proper administration of justice. In this respect they form part of the judicial machinery in the broader sense of this term. It is in the general interest that they, like judicial officers, should enjoy public confidence. It may therefore be necessary for the State to protect them from accusations that are unfounded (see Lešník v. Slovakia,no. 35640/97, §§ 53-54, ECHR 2003‑IV).
16. In the present case, the Court attaches paramount importance to the fact that the serious accusations of corruption and unlawful conduct which the applicant had levelled against the prosecutor S. and his office turned out to be a fabrication without any factual basis to back them up. In the domestic proceedings and before the Court, the applicant and his family members were unable to give any examples of corrupt practices, much less to submit evidence of such acts. Even though the claim of corrupt practices did not refer to S. by name, it was reasonable to accept that he was directly affected by it. He was part of a small group of employees in the identified office and responsible for its management and operation (see Thoma v. Luxembourg, no. 38432/97, § 56, ECHR 2001-III, and contrast with Dyuldin and Kislov v. Russia, no. 25968/02, § 44, 31 July 2007). The applicant’s claim of “outrageously lawless conduct” attributed that conduct to S. referring to him by his full name and position. It appeared however somewhat vague as regards the nature of the reprehensible conduct. Nevertheless, whether construed as an imprecise statement of fact or a strong value judgment, that claim yet again lacked substantiation. Admittedly, a court had previously overturned two procedural decisions which S. had issued in criminal proceedings but there was no indication that S. had acted in bad faith or in blatant disregard of the applicable laws.
17. Not only were the applicant’s accusations of a serious nature but also they were made repeatedly, in a series of complaints he had sent to the highest State officials. They were capable of damaging Mr S.’s professional standing or affecting him in the performance of his duties. Viewed against this background and having regard to the above conclusions on the conspicuous lack of any factual basis, the Court considers that the applicant’s statements were not a fair comment on the work of officials involved in the administration of justice or a good faith report of irregularities but rather a gratuitous personal attack on the professional reputation of a public prosecutor (compare Chernysheva v. Russia (dec.), no. 77062/01, 10 June 2004). It finds therefore that there was a pressing social need to prevent the careless use of serious allegations.
18. As regards the proportionality of the interference, the Court did not find a violation of Article 10 in the Lešník case where the applicant had been criminally convicted for having accused a public prosecutor of misconduct and breaches of law in a letter sent to the General Prosecutor’s Office. In the present case, the proceedings were civil rather than criminal in nature and the applicant was eventually ordered to pay a very small amount of less than three euros (compare Chernysheva, cited above).
19. In view of the above considerations and having regard to the margin of appreciation afforded to the national authorities in such matters, the Court finds that the interference complained of was proportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify it. The interference could thus reasonably be considered necessary in a democratic society to protect the reputation or rights of others within the meaning of Article 10 § 2.
20. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 October 2019.
Stephen Phillips Paulo Pinto de Albuquerque
Registrar President
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