THIRD SECTION
\nCASE OF REBECHENKO v. RUSSIA
\n(Application no. 10257\/17)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n16 April 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Rebechenko v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Helen Keller, President, Having deliberated in private on 26 March 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. 10257\/17) 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, Mr Maksim SergeyevichRebechenko (\u201cthe applicant\u201d or \u201cMr R.\u201d), on 30 December 2016.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A.Zabaznov. The Russian Government (\u201cthe Government\u201d) were initially represented by Mr\u00a0G.\u00a0Matyushkin, 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\u00a0On 4 September 2017notice of the application was given to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1992 and lives in Voronezhskaya, Krasnodar Region.<\/p>\n 5.\u00a0\u00a0In summer 2014 Ms F., the head of the Ust-Labinskiy District and of thenon-governmental organisation \u201cHuman Rights Defender\u201d, spoke at a television talkshow on the situation in the eastern region of Ukraine and relations between Russia and Ukraine.<\/p>\n 6.\u00a0\u00a0On 28 July 2015 the applicant published on YouTube a video with the title \u201cKolkhoz TV on Ukrainian crisis\u201d (\u041a\u043e\u043b\u0445\u043e\u0437\u043d\u043e\u0435\u0442\u0435\u043b\u0435\u0432\u0438\u0434\u0435\u043d\u0438\u0435\u043e\u0431\u0443\u043a\u0440\u0430\u0438\u043d\u0441\u043a\u043e\u043c\u043a\u0440\u0438\u0437\u0438\u0441\u0435) where he made comments on MsF.\u2019s speech as follows:<\/p>\n \u201cMs F.: Nobody in the whole world has ever thought that Russia would become such a strong country and … that Russia would reach new horizons…<\/p>\n The applicant (Mr R.): Nodding ironically, showing the brochure \u201cLife of a galley slave\u201d.<\/p>\n Ms F.: … would organise worldwide renowned Olympic Games…<\/p>\n Mr R.: Nodding ironically, showing brochure \u201cWinter Olympic Games in subtropics\u201d.<\/p>\n Ms F.: …and would host the Eurovision competition and, at the same time, would become a leading leader among gases (\u0441\u0442\u0430\u043d\u0435\u0442\u043b\u0438\u0434\u0438\u0440\u0443\u044e\u0449\u0438\u043c\u043b\u0438\u0434\u0435\u0440\u043e\u043c\u0441\u0440\u0435\u0434\u0438\u0433\u0430\u0437\u0430).<\/p>\n Mr R.: Yet today, according to the latest reports of the Mendeleyev international rating agency, Russia has reached the top of the list, drawing ahead of such gases as carbon, hydrogen and oxygen.<\/p>\n Ms F.: …There is a war against Russia, which has become a first-rate power and everybody is annoyed by this fact…They want us to die of drug and alcohol abuse and poverty etc.<\/p>\n Mr R.: But it is not true that we die of alcohol, drugs and poverty… poverty?<\/p>\n Ms F.: … Ukraine is, so to say, our Russian belly…<\/p>\n Mr R.: I am afraid of asking what the Far East is.<\/p>\n Ms F.: And that\u2019s why we must, certainly, help these people who have found themselves in a horrible situation because Kyiv, to be honest, does not need these people. It needs gas.<\/p>\n Mr R.: But who is \u2018the leading leader among gases\u2019? That means they need Russia!<\/p>\n Ms F.: So, Slavyansk means gas…<\/p>\n Mr R.: Slavyansk means gas. As we know, gas means Russia. This proves that Slavyansk belongs to us on lawful grounds. In fact, it does not.<\/p>\n Ms F.: … We must not get involved in a war…<\/p>\n Mr R.: Wait! You have said that a war has been declared on us. How can we not get involved in the war if we have been drawn into the war, as everybody knows, by Bulgarians?<\/p>\n Ms F.: … we may not interfere [with what is happening in Ukraine]. Yes, we are sorry, yes, people die there. As has previouslybeen said, what if our peoplego there and die?<\/p>\n Mr R.: I would recommend that this woman go to mothers of Russian soldiers, in particular those who had beendismissed from the service or who were on leave and who returned from Ukraine in coffins, so she could tell them that we did not interfere and that we do not have troops there.<\/p>\n Ms F.: And if now the economic situation in the country worsens and Russian people seek to rebel? We are already under pressure from various religious conventions (\u043a\u043e\u043d\u0432\u0435\u043d\u0446\u0438\u0439) which have infiltrated the country. Even in Krasnodar Region there are many such protestant, so to say, religious cults, as I call them, which influence people\u2019s minds.<\/p>\n Mr R.: What, [beep] you are talking about?!<\/p>\n Ms F.: I guess they are now trying to convince us ideologically that if we are not happy with regional authorities\u2019 decisions we need to organise rallies, revolutions etc. I believe that we must not take the bait!<\/p>\n Mr R.: … because this breaks with long traditions and principles: to stay in a horsebox and eat all this sh** coming from the television.<\/p>\n Ms F.: We all, including all human rights defenders, need to work together as a team…<\/p>\n Mr R.: A person who claims to be a human rights defender must know what human rights are… Now you have an idea of what is happening inside the heads of those who watch television! Next patient, please!\u201d<\/p>\n 7.\u00a0\u00a0On 11 January 2016 Ms F. brought an action against the applicant, stating that he had offended her and had harmed her reputation.<\/p>\n 8.\u00a0\u00a0On 28 January 2016 the Ust-Labinskiy District Court of the Krasnodar Region allowed her claim. The court held as follows:<\/p>\n \u201c… [the applicant] disseminated untrue statements about Ms F. which damaged her honour, dignity and reputation, because these statementsreferred to unethical behaviour on her part…<\/p>\n The court has established that the defendant used abusive and obscene language in his video …, therefore [the applicant] intended to humiliate Ms F. and damage her reputation.<\/p>\n … Ms F., the head of the Ust-Labinsk District, has sustained damage of a non\u2011pecuniary nature due to emotional distress caused by the defendant\u2019s defamatory and discrediting statements and allusions to her unethical conduct. In accordance with the principle of reasonableness, taking into account the seriousness of the wrongful acts, the nature of the offence and the contents of the publication, the degree of suffering involved, and that the information concerned a public activist and was available for the general public, the court allows the plaintiff\u2019s claim for non\u2011pecuniary damage in part and awards 50,000 roubles (\u2018RUB\u2019)\u201d.<\/p>\n 9.\u00a0\u00a0On 24 February 2016 the applicant lodged an appeal against the decision of 28 January 2016. He submitted that he had not offended Ms F.,buthad rather commented on her statements regarding the situation in Ukraine; nor had he disseminated any untruths relating to Ms F. As to obscene words, the applicant had used only one word meaning \u201cprostitute\u201d. However this word had been an interjection rather than an offence, andhad been bleeped out. The applicant emphasised that the first-instance court had established that Ms F. was a public person who should tolerate critics,but had still issued a decision violating freedom of political speech.<\/p>\n 10.\u00a0\u00a0On 5 May 2016 the Krasnodar Regional Court upheld this decision on appeal, stating that the applicant had failed to provide any proof in respect of statements about Ms F. used in his video, and that he had used vulgar and obscene words humiliating Ms F.<\/p>\n 11.\u00a0\u00a0On 1 August and 1 November 2016 the Krasnodar Regional Court and the Supreme Court of Russia dismissed the applicant\u2019s cassation appeals.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 12.\u00a0\u00a0Article 29 of the Russian Constitution guarantees freedom of expression.<\/p>\n 13.\u00a0\u00a0Under Article 152 of the Civil Code of Russia, citizens may apply to the court for retraction of statements discrediting their honour, dignity or business reputation, unless the person who has disseminated such statements proves them to be true. A citizen who is the subject of statements which have been disseminated and which discredit 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.<\/p>\n 14.\u00a0\u00a0In Ruling no. 3 of 24 February 2005, the Plenary Supreme Court noted that Article 29 \u00a7 3 of the Constitution provided that no one could be compelled to express opinions or beliefs, or be compelled to refrain from expressing them.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 15.\u00a0\u00a0The applicant complained under Article 10 of the Convention about a violation of his right to impart information. Article 10 provides 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 …\u201d<\/p>\n 16.\u00a0\u00a0The Government submitted that the applicant had prejudiced Ms F.\u2019s reputation and had offended her by using obscene words, saying \u201ca person who claims to be a human rights defender must know what human rights are\u201d, and \u201cnext patient, please\u201d. They further submitted that the video did not concern a question of general interest, but had been uploaded to make fun of the guests of a local television talkshow. Moreover, the applicant was a blogger, hence the guarantees applied by the Court to journalists and the press did not apply to the present case. Therefore,his freedom of expression had been restricted in accordance with the law in order to protect the rights of others.<\/p>\n 17.\u00a0\u00a0The applicant maintained his complaint.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 18.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded 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 B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0General principles<\/em><\/p>\n 19.\u00a0\u00a0The 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 and a basic condition for its progress and the development of every person. Consequently, the Convention provisions securing this right apply not only to \u201cinformation\u201d or \u201cideas\u201d 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, \u00a7 49, Series A no. 24; Axel Springer AG v.\u00a0Germany\u00a0[GC], no. 39954\/08, \u00a7 78, 7 February 2012; and Mouvementra\u00ebliensuisse v. Switzerland [GC], no. 16354\/06, \u00a7 48, ECHR 2012 (extracts)).<\/p>\n 20.\u00a0\u00a0Nevertheless, 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\u00a0September 1994, \u00a7 31, Series A no. 298; and Janowski v. Poland [GC], no. 25716\/94, \u00a7 30, ECHR 1999-I).<\/p>\n
\nPere Pastor Vilanova,
\nMar\u00eda El\u00f3segui, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n