The ECHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 10 of the Convention for the Protection of Human R Сведения: 2020-05-23 03:40:56

The ECHR judgment of October 08, 2019 in the case of Margulev v. Russia (Margulev v. Russia) (application No. 15449/09).

In 2009, the applicant was assisted in preparing the application. Subsequently, the application was communicated to the Russian Federation.

In the case, an application was successfully examined regarding the decisions of the courts of the Russian Federation on the refutation of the applicant’s statements published in the newspaper, which limited his ability to share with others and disseminate his published opinion on the restoration work in the museum complex. The case violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The applicant headed a public non-governmental organization created to preserve Tsaritsyno, an architectural complex in the south of Moscow, which has museum status and includes an English landscape garden.

In 2007, an article was published in the newspaper “Tsaritsyno Won't Survive the Winter”, which criticized the restoration work funded by the Moscow City Government. The article suggested that the work carried out damaged the English landscape garden. The article also quoted the applicant, from whom newspaper employees interviewed, such as: "... People were deprived of their historical and cultural heritage ... Restoring Tsaritsyno is a desecration of a historical monument ..."

The Moscow city government filed a defamation lawsuit against the newspaper, claiming that these statements damaged his business reputation. The government of Moscow demanded a refutation of these expressions. The applicant successfully applied for admission to participate in the case as a third party, although he did not file a separate claim.

The trial court considered the appealed statements as questions of facts, the reliability of which the defendant could not prove. The editors of the newspaper were ordered to publish at their own expense a refutation in another newspaper (since at that time the release of their own newspaper was suspended). The court of second instance in summary form upheld the decision of the court of first instance.


QUESTIONS OF LAW


Regarding compliance with article 10 of the Convention. (a) Intervention / victim status. (i) The procedural situation of the applicant. According to the legislation of the Russian Federation, the status of a third party in a case can be granted even if the party has not filed a separate lawsuit regarding the subject of the dispute, when "a court decision may affect the rights and obligations of a third party in relation to the plaintiff or defendant." Recognizing the applicant as a third party in the defamation lawsuit, the courts of the Russian Federation automatically recognized that the rights of the applicant had been affected by court decisions. The Court accepts this interpretation.

(ii) Subject of dispute related to the applicant. The applicant informed the European Court that the decisions of the courts of the Russian Federation to refute the applicant’s statements published in the newspaper limited his ability to share with others and disseminate his published opinion on the restoration work in the Tsaritsyno museum complex. This issue was obviously of interest to the public, which was interested in preserving the cultural heritage.

(iii) Conclusion: victim status confirmed. The applicant submitted a prima facie case on interference with his right to freedom of expression, thus, it can be said that he was “directly affected” by the trial to which he was a party.

(b) The legitimacy of the aim pursued. Being ready to assume that such a goal was legitimate, the Court emphasized that the interest of the Government of Moscow as an authority in protecting its "reputation" did not necessarily mean the same level of guarantees that was inherent in the "protection of reputation ... of other persons" within the meaning of Article 10 § 2 of the Convention (see, mutatis mutandis, UJ v. Hungary judgment of July 19, 2011, application no. 23954/10, and the European court ruling in the case of Kharlamov v. Russian Federation "(Kharlamov v. Russia) dated October 8, 2015, complaint N 27447/07).

(c) The need for a democratic society. Firstly, the applicant expressed disputed expressions as the head of a non-governmental organization. When a non-governmental organization draws attention to issues of public interest (as in the present case), it can be called fulfilling the social function of a “watchdog”, and it is entitled to the same convention protection as the press.

Secondly, the case does not reveal any issues related to the ethics of journalism or good faith on the part of a non-governmental organization. Indeed, statements criticizing the restoration of the architectural complex in question were presented as the words of a third party from whom the newspaper’s employees interviewed, and these words were clearly spoken by the applicant.

Thirdly, the courts of the Russian Federation limited themselves to finding that the appealed statements damaged the business reputation of the Government of Moscow and that the defendant did not prove the truth of these allegations. The following elements indicated that the authorities of the Russian Federation did not apply the relevant Convention standards.

- The important role of the press in a democratic society. The following facts were not taken into account: the position of the defendant as the editorial board of the newspaper, as well as the position of the applicant as a member of a non-governmental organization; the presence or absence of good faith in the actions of the parties; the objectives pursued by the respondent upon publication of the article and the objectives of the applicant when he voiced the impugned statements; Whether the article in question dealt with issues of public interest or general concern; Did the information about the quality of restoration work referred to in the article relate to concern for the preservation of cultural heritage.

- The distinction between statements of fact and value judgments. The courts of the Russian Federation did not make a clear distinction between the two categories of statements. They also ignored the requirements of the decision of the Supreme Court of the Russian Federation, according to which the value judgments were defended by the court in the form of a request for refutation, as happened in the present case. In any case, the distinction between statements of fact and value judgments was less important when the appealed statement was made during a debate on a matter of public interest, and when civil society representatives and journalists should have unrestricted freedom to criticize the actions of public authorities, even if the relevant statements could be poorly supported by facts.

- Establishing a balance between competing interests. The courts of the Russian Federation apparently automatically assumed that the interests of protecting reputation prevailed over freedom of expression in all cases. They did not take into account that the plaintiff in the defamation proceedings was a public authority, which as such should be tolerant of a wider range of criticism. The courts of the Russian Federation also explicitly rejected the defendant's argument that the Government of Moscow was not even mentioned in the disputed statements, while the presence of an objective connection between the words appealed and the party filing the defamation claim is an obligatory element of proportionality.

Thus, the courts of the Russian Federation did not give relevant and sufficient reasons justifying the interference in question. If they did, the Court would need good reason to replace the findings of the courts of the Russian Federation with their opinion. In the absence of actions to strike a balance between competing interests carried out by the Government, the Court was not obliged to conduct a full analysis of proportionality.


RESOLUTION


There was a violation of Article 10 of the Convention (unanimously accepted).


COMPENSATION


In application of Article 41 of the Convention. The Court awarded the applicant EUR 3,000 in respect of non-pecuniary damage.

 

 

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