OSTAPENKO AND KOSTINA v. RUSSIA (European Court of Human Rights)

Communicated on 28 January 2019

THIRD SECTION

Application no.18306/11
Tatyana VladimirovnaOSTAPENKO and Anna Aleksandrovna KOSTINA
against Russia
lodged on 2 March 2011

STATEMENT OF FACTS

The applicants, Ms Tatyana VladimirovnaOstapenko and Ms Anna AleksandrovnaKostina, are Russian nationals, who were born in 1960 and 1980 respectively and live in Rostov-on-Don.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 28 April 2009 the local newspaper “Donskaya Iskra” published an open letter addressed to the President’s Envoy to the Southern Federal District and the Governor of the Rostov Region signed by eight people including the two applicants. The open letter was printed in the column “We are not slaves! Slaves are silent!” and headed “Protect your subjects from brazen arbitrariness!”. The letter read as follows:

“Dear Sirs, leaders of the region and the south of Russia!

We apply specifically to you, while realising that you are extremely busy with solving important State tasks and issues. However, honour and dignity, life and health of people, as we see it, should be the main object of care of a true leader.

We understand that our “paper” with your “visa” will be forwarded to regular State officials, and we will again face our torturers – impertinent, cynical in their impunity “owners”, for whom honour, dignity and life itself of their subordinates does not cost anything.

But you represent here the Russian President, implement in practice his policy. And on TV we hear every day DmitriyAnatolyevich Medvedev, and the prime-minister Vladimir Vladimirovich Putin, who instruct you, local leaders, while making reforms, to think above all about people, about every person, so that their families don’t suffer, to do everything to keep working places even in times of crisis … And in our case we talk about fates of hundreds of workers and their families.

We also apply specifically to you, Vladimir Fyederovich [the governor], because our enterprise – “Donavtovokzal” for many years has been a part of the system of enterprises of the “Doninvest” bank, which you supported and, to the best of your abilities, helped. Thus, you also have a moral responsibility for our enterprise, for the lawlessness and arbitrariness which flourish here today.

It should be said that until recently our enterprise employed more than 700 people, mostly experienced, high-skilled specialists.

And the results of work were not bad. So, in 2008 the revenues increased by 44,9% (10,267,000 roubles) in comparison with 2007. During the first two months of 2009 the revenues increased by another 16% in comparison to the data of the last year.

We had a good, stable collective; we had normal human relations between colleagues, and between managers and subordinates.

Until the new management – the general director Z. and his vice-director V. – came.

The style of their work is rudeness, impertinence, boorishness. It is ok to humiliate and insult subordinates. From the first days since their arrival, the enterprise turned into “gestapo” missing only gas ovens …

For no reasons [they] started throwing out employees onto the streets: no matter, a single mother, a woman before reaching the retirement age or highly qualified workers. All was done rudely, cynically, without any signs of humanity, compassion … Many began leaving themselves with the words: “life is more important”.

Protection is nowhere to be found: these fine young men (“молодцы”) liquidated the trade union at the enterprise.

Some people applied to the prosecutor’s office of the Leninskiy District, some went to the courts andthe labour inspection of the Rostov Region. But the conduct of these jokes of a leader did not change. On the contrary, the repressions of objectors increased. A manhunt was started against an experienced economist, who had devoted years to the enterprise and had not had even one reproach. While she has only one year until her retirement, she is constantly deprived of her bonus which corresponds to 90% of her monthly salary, without explaining any reasons. Not only [this] humiliates human and professional dignity, but it also deprives her of the possibility to receive a pension based on real earnings.

In the manhunt [they don’t] shrink away from any methods – intrigues, rumours, squabbles and other detestable means.

A question rises unwillingly, why have been these leaders sent to the enterprise? To improve the work of “Donavtovokzal”? But even the work is under threat now: from 1 May 2008 to 31 August 2008 208 people were fired; since the beginning of 2009 – several more tens of people.

There is only one explanation – the desire to replace, by all unauthorised methods, employees by their relatives and “their” people. But is this not a crime? They used intrigues, violation of human rights, humiliation of human dignity. Why does this happen with impunity, don’t the indicated violations fall under an Article of the Criminal Code?

While this letter was being prepared, two oldest employees (one worked twenty five years, the other was to go on retirement in one year) were fired in connection with “job cuts”, directly onto the streets. This is how the country’s President’s instructions to treat carefully the personnel are implemented in a Rostov enterprise!!!

Our rowdy leaders are not owners of the enterprise, they are only appointed to manage by the Board of directors. And that’s how they “manage”…

People who are still left to work, are so afraid of these fine young men, that they tolerate and stay silent despite humiliations and impertinence, especially from the overzealous thirty-year old “officer” V. There is crisis, unemployment – how to feed a family? And those, who have been fired, are also really afraid of physical reprisals as they consider the new management to be criminal…

Upon the joint investigation of our complaints the labour inspection and the prosecutor’s office of the Rostov-on-Don recommended us to inspect the prosecutor’s office’s instruction concerning the identified violations and measures taken in the “Donavtovokzal”. Only how to do it, when people who were fired and even those who has not yet received the outstanding payments, are not allowed approaching the enterprise at the cannon fire distance? Best case scenario, they would be led in by the convoy. So much for human rights and democracy…”

The vice director, Mr V., brought a defamation suit against the applicants and the newspaper. Before the court the applicants referred to the statistics of dismissals at the company since the arrival of the new management (about 400 people of 700); court judgments about reinstatement of some personnel which had been unlawfully dismissed; judicial awards of unpaid sums; instructions to the management from the State Labour Inspection to stop violations of labour laws; prosecution of the head director for an administrative offence related to violations of labour laws. On 24 December 2009 the Leninskiy District Court of Rostov-on-Don found for the claimant. In particular, the District Court relied on a linguistic expert report to find statements of facts (by contrast to subjective opinions) which the applicants had not proven:

“Thus, from the above report it becomes obvious that the publication contains not only personal opinions of the authors, but also statements of facts, the truthfulness of which may be verified.

Therefore, the respondents had to provide to the court the evidence of truthfulness of their statements. However, no such evidence has been submitted to the court.

Given that the open letter contains statements of violations by the claimant of norms of law and morals, which are untrue, infringe the honour and dignity of the claimant, have a discrediting character, the court considers that the claimant’s defamation action should be granted …

the court … held

to grant the defamation action [of Mr V.], [and] declare [untrue the following statements from the applicants’ open letter:] that the company’s management conducts unreasonable massive dismissals of personnel in violation of labour laws; liquidated a trade union and, thus, left the workers without the possibility to protect their rights; people who had been fired cannot receive outstanding payments as they are not permitted to enter the company; massive and unreasonable dismissals of people result from self-serving objectives of the management – to employ relatives and “their” people; the wrong style of communication between the management and the staff – distasteful, humiliating; lack of understanding, compassion, sympathy and humane attitude to people, employees of the company; rudeness, cynicism and impertinence in communication of the management with people; the policy of total submission to the management; cruel persecution of demonstrations of democratic liberties and requests to respect human rights; the tactics of management and organisation of the company’s staff by dishonourable and low methods (rumours, intrigues, squabbles); the management is capable of criminal methods – physical reprisals of objectors.”

The District Court ordered the applicants to issue a refutation and pay to the vice director non-pecuniary damages in the total amount of 2,000 roubles (about 47 euros).

On 19 April 2009 the Rostov Regional Court quashed the first instance judgment. It held, in particular, that the District Court departed from the claimant’s suit and had itself chosen the statements of facts to be proved by the applicants. Furthermore, the District Court breached the principle of the equality of parties when it had refused to admit for examination the linguistic report prepared by an expert that the applicants had sought to adduce. The Regional Court, thus, remitted the case for a fresh examination.

On 5 August 2010 the Presidium of the Rostov Regional Court performed a supervisory review of the decision of 19 April 2009. It disagreed that the District Court had overstepped the limits of the vice director’s claims. The Presidium further considered that the applicants had been proposed questioning their expert at the hearing or motioning the court to order a linguistic report from their expert. As the applicants refused the above proposals, the principle of the equality of the parties had been respected. The Presidium, thus, quashed the decision of 19 April 2009 and remitted the case for a fresh examination by the second instance court.

On 2 September 2010 the Rostov Regional Court upheld the judgment of 24 December 2009 having endorsed its reasoning.

COMPLAINTS

The applicants complain that the judgment issued against them in the defamation proceedings had constituted a disproportionate interference with their rights under Article 10 of the Convention. They also complain under Article 6 of the Convention that the courts refused to adduce their expert report. The applicants further complain under Articles 14 and 17 of the Convention.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicants’ freedom of expression within the meaning of Article 10 § 1 of the Convention?

If so, was that interference necessary in terms of Article 10 § 2?

In particular, did the national authorities apply standards which were in conformity with the principles embodied in Article 10 of the Convention (see, for instance, Bédat v. Switzerland [GC], no. 56925/08, § 48, 29 March 2016)? Was the characterisation of the applicants’ utterances as statements of fact, rather than value judgments, justified?

2.  Did the applicants have a fair hearing in the determination of their civil rights in accordance with Article 6 § 1 of the Convention? Specifically, were the applicants able to adduce the evidence in support of their position on a footing equal to their opponent?

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