{"id":1303,"date":"2019-04-19T15:26:13","date_gmt":"2019-04-19T15:26:13","guid":{"rendered":"https:\/\/laweuro.com\/?p=1303"},"modified":"2019-04-24T15:08:13","modified_gmt":"2019-04-24T15:08:13","slug":"case-of-skudayeva-v-russia","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1303","title":{"rendered":"CASE OF SKUDAYEVA v. RUSSIA (European Court of Human Rights)"},"content":{"rendered":"

THIRD SECTION
\nCASE OF SKUDAYEVA v. RUSSIA
\n(Application no. 24014\/07)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n5 March 2019<\/p>\n

This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n

In the case of Skudayeva v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/p>\n

Vincent A. De Gaetano, President,
\nBranko Lubarda,
\nHelen Keller,
\nDmitry Dedov,
\nGeorgios A. Serghides,
\nJolien Schukking,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n

Having deliberated in private on 5 February 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 24014\/07) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Ms Anna Aleksandrovna Skudayeva (\u201cthe applicant\u201d), on 14 April 2007.<\/p>\n

2.\u00a0\u00a0The applicant was represented by Ms G. Arapova, a lawyer practising in Voronezh. The Russian Government (\u201cthe Government\u201d) 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.<\/p>\n

3.\u00a0\u00a0The applicant alleged a violation of her right to freedom of expression.<\/p>\n

4.\u00a0\u00a0On 3 April 2013 the application was communicated to the Government.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

A.\u00a0\u00a0Impugned article<\/strong><\/p>\n

5.\u00a0\u00a0The applicant is a journalist.<\/p>\n

6.\u00a0\u00a0On 18 July 2006 a local daily newspaper, theKostroma Chronometer(\u0425\u0440\u043e\u043d\u043e\u043c\u0435\u0442\u0440-\u041a\u043e\u0441\u0442\u0440\u043e\u043c\u0430) published in issue no. 29 an article by the applicant entitled \u201cAn Unfunny Film\u201d (\u041d\u0435\u0441\u043c\u0435\u0448\u043d\u043e\u0435\u043a\u0438\u043d\u043e). The article read, in so far as relevant, as follows:<\/p>\n

\u201cIn the midst of the corruption scandals rocking the region, \u2018The Red House\u2019 is trying to save face at all costs.<\/p>\n

For the sake of the \u2018honour of the regiment\u2019.<\/p>\n

For several years residents of the Kostroma Region have been forced to watch endless \u2018soap operas\u2019featuring major corruption scandals involving the region\u2019s authorities.<\/p>\n

The first episode of the series,\u2018There is no corruption in the regional administration\u2019 was released in 2002, when a criminal investigation was initiated against D.S., the Deputy Governor of the Region. The investigation was opened on suspicion of his having inflicted moderately grave bodily injuries, as well as \u2013under Article 201 of the Criminal Code a corruption-related provision\u2013 suspected embezzlement constituting abuse of public office.<\/p>\n

In spite of the serious nature of the criminal charges brought against his deputy, Governor V.Sh. tried to shield his subordinate at all costs, attempting to uphold\u2018the honour of the regiment\u2019 (\u0447\u0435\u0441\u0442\u044c\u043c\u0443\u043d\u0434\u0438\u0440\u0430).But whilst the scandal-ridden deputy languished in his remand prison cell and sat in the court room during the trial, a comfortable chair was quietly awaiting its owner back at\u2018The Red House\u2019 (\u2018\u043a\u0440\u0430\u0441\u043d\u044b\u0439\u0434\u043e\u043c\u2019).<\/p>\n

In February 2003 the Governor sent to judge M. petition no. 134\/gl on a piece of stationery carrying the coat of arms of the Kostroma Region, in which he made a remarkably simple demand: \u2018If the court finds that the actions with which D.S. has been charged are of a criminal nature, I ask you to examine the possibility of terminating the criminal proceedings against him.\u2019 It is curious that even after the delivery of the verdict finding D.S. guilty, Governor V.Sh. persisted and for a long time refused to dismiss from office the civil servant who had tainted his reputation. He was able to part with such a \u2018promising\u2019 employee only after the prosecutor of the region had made an official request to this end…\u201d<\/p>\n

B.\u00a0\u00a0Defamation proceedings against the applicant<\/strong><\/p>\n

7.\u00a0\u00a0On 28 July 2006 the Administration of the Kostroma Region and V.Sh., Governor of the Kostroma Region, lodged defamation claims with the Leninskiy District Court of Kostroma (\u201cthe District Court\u201d) against the publisher of theKostromaChronometerand the applicant,seeking retraction of certain statements and claiming compensation in respect of non\u2011pecuniary damage. The claimantschallenged, in particular, the following statements: \u201cIn the midst of the corruption scandals rocking the region, \u2018The Red House\u2019 is trying to save face at all costs\u201d and \u201c[i]n spite of the serious nature of the criminal charges brought against his deputy, the Governor tried to shield his subordinate at all costs, attempting to uphold the honour of the regiment\u201d.<\/p>\n

8.\u00a0\u00a0On 5 October 2006 the District Court partially allowed the defamation claims, finding that one of the impugned statements was untruthful and ordering that a retraction be published and that the applicant and the newspaper pay 500 Russian roubles (RUB) (approximately 15 euros (EUR) at the exchange rate applicable at the time) and RUB 1,000 (approximately EUR 30), respectively, in compensation for non\u2011pecuniary damage. The judgment read, in so far as relevant, as follows:<\/p>\n

\u201cAnalysing the article\u2019s contents as a whole and the information therein disputed by the claimants, the court concludes that … the expression \u2018to save face\u2019 referring to the corruption scandals in the region and endeavours of the administration of the Kostroma Region is not defamatory for the reason that the criminal prosecution of the heads of the region\u2019s executive bodies and unitary enterprises was a known fact. All these events attracted public attention and drew wide public response in the region, regardless of articles in the press.<\/p>\n

The claim of the article\u2019s author that the Administration of the Kostroma Region was trying to \u2018save face\u2019in the midst of corruption scandals does not imply a statement that this State agency is trying to justify, especially by any unlawful means, any of its actions or those of its employees.<\/p>\n

In view of the foregoing, the court finds no grounds to allow the claims brought by the Administration of the Kostroma Region.<\/p>\n

The statements published in the newspaper concerning Governor V.Sh.\u2019s attempts to shield, at all costs,the actions of his subordinate D.S., who was facing criminal charges, have not been confirmed [as truthful] in the course of the court hearing.<\/p>\n

The court has established that on 9 February 2003 Governor V.Sh. sent to federal judge M. a petition seeking termination of the criminal proceedings against D.S. … The Governor requested that the court examine the possible termination of criminal proceedings against D.S., taking into account legal norms in force.<\/p>\n

\u2018Shielding\u2019[\u0432\u044b\u0433\u043e\u0440\u0430\u0436\u0438\u0432\u0430\u043d\u0438\u0435] is defined in the dictionary … as proving that someone is not involved in something, with a view to escaping responsibility.<\/p>\n

\u2018At all costs\u2019 [\u0432\u0441\u0435\u043c\u0438 \u0441\u0438\u043b\u0430\u043c\u0438] means [according to the dictionary] by all means and in every manner.<\/p>\n

The Governor\u2019s petition does not contain any indications that Governor V.Sh. was trying to prove to the court that [his deputy] D.S. had not been involved in the crimes he had been accused of and that he was trying to help him escape criminal responsibility at all costs. The Governor\u2019s request meant that, taking into account the legal norms in force, that is to say in accordance with the law, the court[be invited to] examine the possibility of terminating the criminal case,taking into account the time that had elapsed since the commission of the offences by D.S. and the information concerning the latter\u2019s personal character.<\/p>\n

Consequently, the information contained in the article in the part impugned by the claimant does not reflect the truth.<\/p>\n

In the court\u2019s opinion, the statements disseminated concerning the Governor are of a damaging nature because they lead a reader tothe opinion that he has broken moral and ethical norms, behaved improperly towards society, [and] ignored the requirements of the criminal procedure laws.<\/p>\n

Moreover, according to the dictionary …, \u2018the honour of the regiment\u2019implies an ironical attitude to apparent decency and a falsely impeccable reputation. This expression describes a person who, for the sake of personal or narrowly interpreted institutional interests, does not want to wash hisdirty linen in public [and] wishes to maintain decency and a good reputation by any means possible.<\/p>\n

The defendants failed to provide evidence that would objectively demonstrate that, when sending the petition concerning the termination of the criminal case against D.S., the Governor was pursuing his private interests or those of the Administration of the Kostroma Region.<\/p>\n

Accordingly, the [defamation] claims of the Governor of the Kostroma Region regarding the protection of his honour, dignity and business reputation are well\u2011founded in law and should be granted.\u201d<\/p>\n

9.\u00a0\u00a0The applicant and the editor-in-chief of the newspaper appealed against the judgment to the Kostroma Regional Court (\u201cthe Regional Court\u201d) referring, inter alia, to the fact that the impugned statements represented value judgments which had a strong factual basis in the form of the Governor\u2019s petition to judge M. The Administration of the Kostroma Region also appealed.<\/p>\n

10.\u00a0\u00a0On 11 December 2006 the Regional Court rejected the applicant\u2019s appeal and upheld the judgment of 5 October 2006 in full. Its reasoning included the following:<\/p>\n

\u201cWhen deciding on the claims brought by the Governor of the Kostroma Region, the [District] court reasonably concluded that the defendants had not proven in the course of the hearing that the Governor had tried to shield his subordinate by all means and in every manner, that is, at all costs, in order to uphold \u2018the honour of the regiment\u2019.The [District] court therefore reached the correct conclusion that the statement in question was untruthful and damaging for the Governor. This finding by the [District] court is well-reasoned, corresponds to the requirements of law and to the case materials, [and] there are no grounds for declaring it erroneous.<\/p>\n

Ms Skudayeva\u2019sargument that an author has the right to express her own opinion\u2212 value judgments which are not susceptible of proof\u2212 cannot serve as grounds for quashing the judgment [of 5 October 2006]. Indeed, Ms Skudayeva, just like any other individual, has a right to express her personal opinion, judgment and appraisement(\u0441\u0443\u0436\u0434\u0435\u043d\u0438\u0435). However, if personal opinions, judgments or appraisements contain statements which tarnish a person\u2019s honour, dignity and reputation, they must be truthful. Under Article 17 \u00a7 3 of the Constitution of Russia, the realisation of human rights and freedoms cannot breach the rights and freedoms of others.<\/p>\n

Furthermore, the statements in question include the statement of fact that \u2018[i]n spite of the serious nature of the criminal charges brought against his deputy, Governor V.Sh. tried to shield his subordinate at all costs, attempting to uphold \u2018the honour of the regiment\u2019, and proof of that [statement]is given later\u2019.\u201d<\/p>\n

11.\u00a0\u00a0According to the applicant, the bailiffs\u2019 service received RUB 500 from her in V.Sh.\u2019s favour on 17 January 2007.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n

12.\u00a0\u00a0For a summary of relevant domestic law and practice see Cheltsova\u00a0v. Russia (no. 44294\/06, \u00a7\u00a7 32-34, 13 June 2017).<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n

13.\u00a0\u00a0The applicant complained that the domestic courts\u2019 judgments in the defamation proceedings against her had unduly restricted her right to freedom of expression guaranteed by Article\u00a010 of the Convention, which reads, in so far as relevant, as follows:<\/p>\n

\u201c1.\u00a0\u00a0Everyone 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. …<\/p>\n

2.\u00a0\u00a0The 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, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.\u201d<\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n

1.\u00a0\u00a0The Government<\/em><\/p>\n

(a)\u00a0\u00a0Observations of 29 July 2013<\/strong><\/p>\n

14.\u00a0\u00a0The Government accepted that there had been an interference with the applicant\u2019s right to freedom of expression which, in their view, had been prescribed by law, necessary in a democratic society and proportionate to the legitimate aim of protecting the reputation of V.Sh.<\/p>\n

15.\u00a0\u00a0The Government insisted that the right to disseminate information was not absolute and may be restricted in accordance with the law with a view to protecting the reputation of third parties, in particular. They pointed out that Russian law \u2013 namely Article 23 of the Constitution, Article 152 of the Civil Code, and Resolution no. 3 of the Plenary Supreme Court \u2013 was in full compliance with the Convention standards and was based on the assumption that it was not permissible to disseminate statements that tarnish a person\u2019s honour, dignity or business reputation.<\/p>\n

16.\u00a0\u00a0They argued that the impugned statements regarding Governor V.Sh. had no factual basis. The domestic courts had correctly found that the Governor\u2019s petition to judge M. had not contained any indication that Governor V.Sh. had tried to convince the judge of D.S.\u2019s innocenceor had tried to help the latter to escape criminal responsibility at all costs. The petition had requested that the judge consider, in accordance with the law, whether it would be possible to terminate the criminal proceedings against D.S. in view of the time that had elapsed since the date when D.S. had committed the offences and takinginto accountboth his character and in particular his professional qualities. The domestic courts had also analysed the expression \u201cthe honour of the regiment\u201d and had correctly concluded that the defendants, including the applicant, had not proven the veracity of the impugned statements in the course of the defamation proceedings.<\/p>\n

17.\u00a0\u00a0The domestic courts had correctly interpreted the impugned statement concerning Governor V.Sh. as an alleged statement of fact that was devoid of any factual basis, not a value judgment. The article had not mentioned the fact that it included value judgments by the journalist. It had been written in an affirmative style, not as an appraisement.<\/p>\n

18.\u00a0\u00a0The Government further submitted that it was primarily for the national courts to establish factual circumstances of a case. In sum, they invited the Court to declare the application manifestly ill-founded.<\/p>\n

(b)\u00a0\u00a0Additional observations of 28 November 2013<\/strong><\/p>\n

19.\u00a0\u00a0The Government argued that the domestic courts had established the requisite balance between two competing values,having weighedthe applicants\u2019 right to freedom of expression against V.Sh.\u2019s right to reputation.<\/p>\n

20.\u00a0\u00a0The District Court had distributed the burden of proof in accordance with Russian law,meaning that it had been incumbent on the claimant to prove the fact of dissemination of the information and on the defendant to prove the veracity of the disseminated statements. The defendants had failed to prove that the impugned statement concerning V.Sh. had been true. The Kostroma Court had correctly rejected as unsubstantiated the applicant\u2019s argument that an author had a right to express opinions and value judgments not susceptible of proof.<\/p>\n

21.\u00a0\u00a0The Government insisted that \u201ca value judgment without any factual basis to support it may be excessive\u201d (see Novaya Gazeta and Borodyanskiyv. Russia, no. 14087\/08, \u00a7 40, 28 March 2013). The interference with the applicant\u2019s right to freedom of expression had been \u201cnecessary in a democratic society\u201d to protect V.Sh.\u2019s reputation because the impugned statement could potentially be perceived by readers as an allegation of V.Sh.\u2019s involvement in corruption-related activities and his unlawful interference with the administration of justice.<\/p>\n

22.\u00a0\u00a0The Government further insisted that the domestic courts had duly taken into account V.Sh.\u2019s status as a public person. As a high\u2011ranking civil servant, agovernor could be expected to possess exemplary moral qualities. Civil servants must enjoy public confidence and, under Russian bylaws, should comply with rigorous ethical standards. A journalist must carefully verify any information to be published. The Government concluded that, \u201chaving considered the content of the impugned statements,the negative subjective appraisement of the personality of the Governor of the Kostroma Region, and the offensive nature of these statements containing personal remarks about the claimant\u201d, the applicant had overstepped the limits of acceptable criticism. Criticism, in the Government\u2019s view, is one\u2019s personal opinion concerning a third party\u2019s activities, whereas the impugned statements had been statements of fact susceptible of proof.<\/p>\n

23.\u00a0\u00a0The Government further argued that the applicant had not suffered a significant disadvantage because the compensation order imposed on her had been a very modest one.<\/p>\n

2.\u00a0\u00a0The applicant<\/em><\/p>\n

24.\u00a0\u00a0The applicant maintained her complaint. She insisted that the domestic courts had failed to perform a balancing exercise between her right to freedom of expression and V.Sh.\u2019s right to reputation as they had failed to take into account the respective positions of Governor V.Sh. and the journalist, as well as the fact that the article had dealt with a matter of public interest, namely, the problem of corruption in the Kostroma Region.<\/p>\n

25.\u00a0\u00a0The impugned statement had represented a value judgment on the part of the applicant, namely her subjective appraisal of the fact that Governor V.Sh. had requested that a judge terminate criminal proceedings against his deputy. The applicant had provided evidence before the domestic courts that V.Sh. had indeed sent the petition in question, and her value judgment had therefore had sufficient factual basis and had been made in good faith. The impugned expressions \u201cto shield at all costs\u201d and \u201chonour of the regiment\u201d had been employed as rhetorical devices, which had exemplified the journalistic freedom to use exaggeration or even provocation. The applicant, as a journalist, had had a duty to inform the public of the Governor\u2019s attempt to influence a member of judiciary in breach of the principle of separation of powers.<\/p>\n

26.\u00a0\u00a0The applicant concluded that the domestic courts had interpreted her journalistic value judgment regarding the moral dimension of Governor V.Sh.\u2019s behaviour in his official capacity as a statement of fact, thus imposing an impossible burden on her as a journalist to prove the veracity of words used as rhetoric devices.She also argued that they had failed to provide relevant and sufficient reasons to justify the interference.<\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n

1.\u00a0\u00a0Admissibility<\/em><\/p>\n

27.\u00a0\u00a0Regarding the Government\u2019s objection that the applicant had not suffered any significant disadvantage within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(b) of the Convention \u2212which was raised for the first time on 28\u00a0November 2013 (see paragraph 23 above) \u2212the Court observes that it concerns a question of admissibility in the narrow sense of that term rather than a matter which goes to the Court\u2019s jurisdiction (see, by contrast, Ble\u010di\u0107 v. Croatia [GC], no. 59532\/00, \u00a7 67, ECHR 2006\u2011III, and Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy v. Finland [GC], no.\u00a0931\/13, \u00a7 93, ECHR 2017 (extracts)).\u00a0It reiterates in this connection that, under Rule 55 of the Rules of Court, any plea of inadmissibility must have been raised by the respondent Contracting Party \u2212 in so far as the nature of the objection and the circumstances so allowed \u2212 in its written or oral observations on the admissibility of the application (see N.C. v. Italy [GC], no. 24952\/94, \u00a7 44, ECHR 2002-X). The Government did not provide any explanation as to why they had omitted to raise their de minimis objection in their observations of 29\u00a0July 2013,and there are not any exceptional circumstanceswhich would exempt them from their obligation to raise any objection to admissibility in a timely manner (see Khlaifia and Others v.\u00a0Italy [GC], no.\u00a016483\/12, \u00a7\u00a052, ECHR 2016 (extracts)). It follows that the Government are thereby estopped from raising a de minimis objection.<\/p>\n

28.\u00a0\u00a0The Court further notes that the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

2.\u00a0\u00a0Merits<\/em><\/p>\n

29.\u00a0\u00a0The Court notes that it is common ground between the parties that the District Court\u2019s judgment of 5 October 2006, as upheld by the Regional Court on 11 December 2006 (see paragraphs 8 and 10 above), constituted an interference with the applicant\u2019s right to freedom of expression guaranteed by Article 10 \u00a7 1 of the Convention. The Court is further satisfied that the interference in question was \u201cprescribed by law\u201d, in particular Article 152 of the Civil Code, and \u201cpursued a legitimate aim\u201d, namely \u201cthe protection of the reputation or rights of others\u201d, within the meaning of Article 10 \u00a7 2 of the Convention. It therefore remains to be examined whether the interference was \u201cnecessary in a democratic society\u201d; this requires the Court to ascertain whether it was proportionate to the legitimate aim pursued and whether the grounds given by the domestic courts were relevant and sufficient (see Morice v. France ([GC], no. 29369\/10, \u00a7 144, ECHR 2015).<\/p>\n

30.\u00a0\u00a0The Court emphasises at the outset that the applicant, who is a journalist, was held civilly liable for an article published in a newspaper. The interference must therefore be seen in the context of the essential role of a free press in ensuring the proper functioning of a democratic society (see, among many other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279\/02 and 36448\/02, \u00a7\u00a062, ECHR 2007\u2011IV).<\/p>\n

31.\u00a0\u00a0The general principles concerning the necessity of an interference with freedom of expression frequently reiterated by the Court have been summarised inB\u00e9dat v. Switzerland ([GC], no.\u00a056925\/08, \u00a7\u00a048, ECHR\u00a02016), among many other authorities. The general principles concerning Article\u00a010 and press freedom have recently been summarised in Satakunnan Markkinap\u00f6rssi Oy and Satamedia Oy, cited above, \u00a7\u00a7 124-28).<\/p>\n

32.\u00a0\u00a0The Court considers that the following standards established in its case-law\u2212 which an interference with the exercise of press freedom must meet in order to satisfy the necessity requirement of Article\u00a010 \u00a7 2 of the Convention\u2212are pertinent in the present case.<\/p>\n

33.\u00a0\u00a0By virtue of the essential function the press fulfils in a democracy (see Delfi ASv. Estonia [GC], no. 64569\/09, \u00a7 132, ECHR 2015), Article 10 of the Convention affords journalists protection, subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see Pentik\u00e4inen v.\u00a0Finland [GC], no. 11882\/10, \u00a7 90, ECHR 2015). A high level of protection of freedom of expression, with the authorities therefore having a particularly narrow margin of appreciation, is normally accorded where the remarks concern a matter of public interest (see B\u00e9dat, cited above, \u00a7 49).Politicians and civil servants acting in an official capacity are subject to wider limits of acceptable criticism than private individuals (see Thoma v.\u00a0Luxembourg, no. 38432\/97, \u00a7 47, ECHR 2001\u2011III, and Pedersen and Baadsgaard v. Denmark [GC], no.\u00a049017\/99, \u00a7 80, ECHR 2004\u2011XI). A careful distinction needs to be drawn between facts and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof (see Cump\u01cen\u01ce and Maz\u01cere v.\u00a0Romania [GC], no.\u00a033348\/96, \u00a7 98, ECHR 2004\u2011XI, and Morice, cited above, \u00a7 126). When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of \u201cprotecting the reputation … of others\u201d,domestic authorities must strike a fair balance when protecting two conflicting values that are guaranteed by the Convention, namely, on the one hand, the right to freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see, among many other authorities, Med\u017elis Islamske Zajednice Br\u010dko and Others v. Bosnia and Herzegovina [GC], nos.\u00a017224\/11, \u00a7 77, 27 June 2017). In order for Article 8 of the Convention to come into play, however, an attack on a person\u2019s reputation must attain a certain level of seriousness and its manner must cause prejudice to the personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070\/06, \u00a7 64, 9\u00a0April 2009, and Axel Springer AG v.\u00a0Germany [GC], no. 39954\/08, \u00a7 83, 7 February 2012).<\/p>\n

34.\u00a0\u00a0The Court further reiterates that, when analysing an interference with the right to freedom of expression, it must, inter alia, determine whether the reasons adduced by the national authorities to justify it were relevant and sufficient. In doing so, the Court has to satisfy itself that these authorities applied standards which were in conformity with the principles embodied in Article\u00a010 and relied on an acceptable assessment of the relevant facts (see Perin\u00e7ek v. Switzerland [GC], no.\u00a027510\/08, \u00a7 196, ECHR 2015 (extracts)).<\/p>\n

35.\u00a0\u00a0The Court has already found a violation of Article 10 of the Convention in a number of cases against Russia because the domestic courts did not apply standards that were in conformity with the standards of its case-law concerning press freedom (see OOO Ivpress and Othersv. Russia, nos. 33501\/04 and 3 others, \u00a7 79, 22 January 2013; Kunitsyna v. Russia, no.\u00a09406\/05, \u00a7\u00a746-48, 13\u00a0December 2016;Terentyev v. Russia, no.\u00a025147\/09, \u00a7\u00a7 22-24, 26 January 2017; OOO Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia, no. 39748\/05, \u00a7\u00a046, 25 April 2017; and Cheltsova, cited above, \u00a7 100). It now has to satisfy itself whether the relevant standards summarised in paragraph 33 above were applied in the defamation proceedings against the applicant.<\/p>\n

36.\u00a0\u00a0The domestic courts limited themselves to finding that the impugned statement had tarnished V.Sh.\u2019s honour, dignity and business reputation, and that the applicant had not proved its truthfulness (see paragraphs 8 and 10 above). They did not take account of: the applicant\u2019s position as a journalist and the presence or absence of good faith on her part; the position of the claimant as a politician and civil servant; the aim pursued by the applicant in publishing the article; the existence of a matter of public interest or general concern in the impugned article; or the relevance of information regarding the Governor\u2019s alleged attempts to influence the judiciary in the context of the fight against corruption (see, mutatis mutandis, Kunitsyna, cited above, \u00a7 46). By omitting any analysis of such elements, the domestic courts failed to pay heed to the essential function that the press fulfils in a democratic society.<\/p>\n

37.\u00a0\u00a0Neither did the domestic courts draw a clear distinction between statements of fact and value judgments. The District Court failed to consider altogether whether the statement impugned by V.Sh. amounted to a value judgment,with complete disregard for the requirements of section 9 of Resolution no. 3 of the Plenary Supreme Court of the Russian Federation of 24\u00a0February 2005, under which value judgments are not actionable under Article 152 of the Civil Code since they are an expression of the defendant\u2019s subjective opinion and views and cannot be checked for their veracity (see Cheltsova, cited above, \u00a7 32). At the applicant\u2019s insistence, the Regional Court addressed the issue, but onlybriefly. Without providing any in\u2011depth analysis of the nature of the impugned statement, itmerely concluded that the latter had been a statement of fact susceptible of proof.<\/p>\n

38.\u00a0\u00a0As to the need to perform a balancing exercise between the Governor\u2019s right to reputation and the journalist\u2019s right to freedom of expression, the Court notes that the domestic courts merely declared that the impugned statement had tarnished V.Sh.\u2019s honour, dignity and business reputation without providing any reasons to support such a finding. The District and Regional Courts did not deem it necessary to examine whether the impugned statement, which concerned V.Sh.\u2019s behaviour in the public sphere as a governor, not his personal qualities or private life, could be regarded as an actual attack capable of causing any prejudice to the claimant\u2019s honour or business reputation, let alone his dignity. Their reasoning appears to be based on the tacit assumption that interests relating to the protection of \u201cthe honour and dignity of others\u201d, in particular of those vested with public powers, prevail over freedom of expression in all circumstances. By failing to weigh the two competing interests against each other, the domestic courts failed to perform the requisite balancing exercise.<\/p>\n

39.\u00a0\u00a0The above elements lead the Court to conclude that the reasons that the domestic courts adducedto justify the interference with the applicant\u2019s Article 10 rights were not \u201crelevant and sufficient\u201d. The Court is mindful of the fundamentally subsidiary role of the Convention system (see Dubsk\u00e1 and Krejzov\u00e1 v. the Czech Republic [GC], nos. 28859\/11 and 28473\/12, \u00a7\u00a0175, ECHR 2016). Faced, however, with the domestic courts\u2019 failure to provide relevant and sufficient reasons to justify the interference in question, the Court finds that they cannot be said to have \u201capplied standards which were in conformity with the principles embodied in Article\u00a010 of the Convention\u201d or to have \u201cbased themselves on an acceptable assessment of the relevant facts\u201d (see, with further references, Terentyev, cited above, \u00a7\u00a024). The Court concludes that the interference with the applicant\u2019s right to freedom of expression was not \u201cnecessary in a democratic society\u201d.<\/p>\n

40.\u00a0\u00a0Accordingly, there has been a violation of Article 10 of the Convention.<\/p>\n

II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

41.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

42.\u00a0\u00a0The applicant argued that the interference had had a chilling effect on her journalistic freedom of expression and claimed 2,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n

43.\u00a0\u00a0The Government submitted that no award should be made in the absence of a violation of the applicant\u2019s Article 10 rights. In any event, the amount claimed was excessive.<\/p>\n

44.\u00a0\u00a0The Court awards the applicant EUR 2,000 in respect of non\u2011pecuniary damage.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

45.\u00a0\u00a0The applicant claimed EUR 1,675 in legal fees incurred before the Court (33.5 hours at the hourly rate of EUR 50). She submitted the retainer agreement indicating the hourly rate at EUR 40 and the final invoice indicating the hourly rate at EUR 50. She further claimed EUR 12[1] that she had paid to the claimant in execution of the District Court\u2019s judgment without providing a copy of proof of payment.<\/p>\n

46.\u00a0\u00a0The Government submitted that no compensation should be awarded for the costs resulting from the payment of \u201cfair compensation for non\u2011pecuniary damage by the applicant to V.Sh.\u201d As regards the claim of EUR 1,675, the Government argued that it was excessive as the applicant\u2019s case had not been particularly complex. Furthermore, they observed that the retainer agreement between the applicant and her representative had fixed an hourly rate of EUR 40 while the itemised schedule had been based on an hourly rate of EUR 50. The Government concluded that these claims had not been supported by appropriate documents.<\/p>\n

47.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant did not enclose any document as evidence of payment of the judicial award. Accordingly, the Court rejects this part of the claim. As to the remainder of the claims, the Court notes the discrepancy between the hourly rate stipulated in the retainer agreement and the one appearing in the final invoice. This discrepancy, in its view, may be attributed to a clerical error or may be the result of a change in the agreement. In any event, regard being had to the documents in its possession and the above criteria, while satisfied that the applicant incurred certain legal costs in connection with her application,the Court considers it reasonable not to award the amount claimed in full. It thus awards the sum of EUR 850 for the proceedings before the Court.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

48.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 10 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsfrom the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into Russian roubles at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(b)\u00a0\u00a0that 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.<\/p>\n

Done in English, and notified in writing on 5 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Stephen Phillips\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Vincent A. De Gaetano
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

 <\/p>\n

[1].\u00a0\u00a0The euro equivalent of the amount awarded to V.Sh. calculated at the exchange rate applicable on the date of submitting the applicant\u2019s just satisfaction claims.<\/p>\n

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THIRD SECTION CASE OF SKUDAYEVA v. RUSSIA (Application no. 24014\/07) JUDGMENT STRASBOURG 5 March 2019 This judgment will become final in the circumstances set out in Article\u00a044 \u00a7\u00a02 of the Convention. It may be subject to editorial revision. In the…<\/p>\n

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