Journalistic criticism of judges. The conviction of a journalist into payment of damages violated the freedom of expression. The criterion for the amount of compensation is the basic monthly salary.
JUDGMENT
Tolmachev v. Russia 02.06.2020 (no. 42182/11)
SUMMARY
Journalistic criticism of judges and freedom of expression. The awarded damages must take into account the financial situation of the defendant.
The plaintiff is a journalist who, through three articles in a newspaper and magazine, criticized judges for their behavior and the way they acted. For one court, she wrote that having a dispute with the occupants of her apartment building, she has shamed herself throughout the country and that “I am convinced that people like Mr. Ms. … should not have judicial powers. They are using them for personal gain and are a disgrace to the Russian judiciary. ” For another court, he wrote an article entitled “How does the bitch relate to all this?” which also contained the following passage “ The experience of the former judge of the L. District Court Ms A., who was caught taking bribes, has been standard practice among judges for a long time … … “.
Following lawsuits against him, he was ordered by court to pay significant amounts of compensation for his articles.
Protesting the violation of freedom of expression, he complained that he had been denied the right to a fair trial.
For the Court, the functioning of the justice system is in the public interest. The ECtHR reminded that the protection of the judge from any criticism of the press can hardly be considered as a measure promoted by the rule of law.
In the present case, the ECtHR found that the domestic courts had not taken into account the existence of an issue of public interest or public concern in the disputed articles or the relevance of the information regarding the alleged corrupt practices of the judges. By omitting any analysis of such evidence, domestic courts have failed to take into account the substantive function that the press performs in a democratic society.
It also ruled that the amount of compensation awarded should be determined on the basis of the applicant’s income and the proportionality principle. He set the minimum institutional monthly salary as an objective criterion for income.
The Court found a violation of the right to freedom of expression (Article 10 of the ECHR) and awarded the applicant € 27,450 in damages and non-pecuniary damage.
COMMENT
Interesting decision for the freedom of expression of journalists, the criticism of judges and the award of pecuniary damages due to non-pecuniary damage.The Court is criticizing judges within the rule of law, noting that protecting them from journalistic criticism can hardly be seen as a measure promoted by the rule of law. According to the ECtHR, judges are ex officio public figures and play a central role in a democratic society. Such a role cannot work effectively without tolerating journalistic criticism.
The ECtHR’s judgment on the amount of monetary compensation awarded for non-pecuniary damage is very useful and interesting. The decision awarding compensation must take into account the defendant’s financial capacity. The Court here received as an objective criterion for the amount of compensation the institutionalized minimum monthly salary of the nation-state. A development that puts a brake on the large and unreasonable compensations that are not related to the real income of the convicted defendant, in line with the fundamental principle of proportionality.
PROVISIONS
Article 10,
Article 6§1
PRINCIPAL FACTS
The applicant, Aleksandr Tolmachev, is a Russian national who was born in 1955 and lived in Rostovon-Don at the relevant time.
The case concerned two sets of defamation proceedings brought against the applicant, a journalist,
following the publication of articles he had written in a local newspaper criticising two district judges
in Rostov-on-Don.
The first set of proceedings focused on an article published in May 2010 reporting on allegations that
a judge had cut off her neighbours’ access to the communal space in a block of flats by installing a
partition.
The second set of proceedings dealt with three articles published in 2008 and 2010 about a judge’s
resignation following allegations that she had been caught taking bribes. The proceedings were
brought by the judge’s son because the judge had in the meantime died.
The courts subsequently found that the applicant’s articles had tarnished the judges’ reputation,
ruling that he had not proved the truthfulness of certain of his statements. The rulings stressed the
heightened vulnerability of the claimants as judges and a judge’s son.
The courts held the applicant liable to pay the claimants a total of 215,000 Russian roubles (RUB –
approximately EUR 5,250) in compensation for non-pecuniary damage in the first set of proceedings
and a total of RUB 1,000,000 (approximately EUR 25,000) in the second set of proceedings.
Relying on Article 10 (freedom of expression), Mr Tolmachev complained about the defamation
rulings against him, emphasising that his articles should have been considered in the wider context
of his efforts to expose judicial corruption. He also alleged that the awards to the claimants had
been disproportionately high.
THE DECISION OF THE COURT…
The Court notes at the outset that the following elements are not disputed between the parties: that the District Court’s judgments of 4 October 2010 and 28 February 2011, as upheld by the Regional Court on 13 December 2010 and 5 May 2011, respectively, constituted an interference with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention; It thus remains to be examined whether the interference was “necessary in a democratic society”;
Turning to the circumstances of the present case, the Court points out that the common element in the two sets of defamation proceedings under consideration is that they stemmed from the above-mentioned newspaper articles that had criticised judges. It reiterates that questions concerning the functioning of the justice system, an institution that is essential for any democratic society, fall within the public interest. In that connection, regard must be had to the special role of the judiciary in society.
The Court observes that in both sets of defamation proceedings the domestic courts omitted to consider certain essential elements. To begin with, they made no attempt to give equal weight to the respective positions of the parties to the proceedings. On the contrary, they attached weight to the presumably heightened vulnerability of Ms M. and Ms A. as judges and of Mr A. as a judge’s son, while ignoring the fact that the applicant was a journalist. The Court reiterates its long-established view concerning the special – indeed, pivotal – role that the judiciary plays in a democratic society, and emphasises that such a role could not be effectively performed without a measure of tolerance regarding journalistic criticism. Shielding a judge from every critical remark on the part of the press – irrespective of its well-foundedness, pertinence, or choice of words – could hardly be seen as constituting a measure promoting the rule of law. Furthermore, the District and Regional Courts did not take account of: the presence or absence of good faith on the applicant’s part (in particular, in view of the documentary and witness testimony produced in the course of the defamation proceedings brought by Ms M.); the aim pursued by the applicant in publishing the articles; the existence of a matter of public interest or general concern in the impugned articles; or the relevance of the information regarding the judges’ allegedly corrupt practices. 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.
Τhe domestic courts did not consider carefully the applicant’s arguments regarding the remaining statements that, in his submission, had expressed his personal, subjective, opinion not susceptible of proof. Accordingly, the Court cannot but note that the domestic courts did not apply rigorously one of the key standards established in its practice regarding the right to freedom of expression.
As to the need to perform a balancing exercise between the judges’ (or their heirs’) right to reputation and journalistic freedom of expression, the Court notes that the domestic courts merely declared that the impugned statements had tarnished the claimants’ honour, dignity and business reputation, without providing any reasons to support such findings.
The Court furthermore points out that the applicant has specifically complained to it of the disproportionately large amounts awarded to claimants.
Turning to the circumstances of the present case, the Court notes that neither of the parties has informed it of the applicant’s monthly income and the resources available to him in general at the material time. Be that as it may, the Court considers it appropriate, in order to put the court awards to Ms M. and Mr A. into perspective, to use as a reference amount the monthly minimum wage (“МРОТ”) set and regularly reviewed by the Russian Federal Assembly.
Yet the domestic courts paid surprisingly little, if any, attention to the issue of the proportionality of the award. Τhe District Court omit any reference to the applicant’s financial situation, it emphasised the fact that the claimant was a judge, giving preponderant weight to the claimant’s position.
The Court considers that the reasons given by the domestic courts in justifying the two instances of interference with the applicant’s right to freedom of expression, although relevant, cannot be regarded as sufficient. In assessing the circumstances submitted for their assessment, the domestic courts did not give due consideration to the principles and criteria as laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression. They thus exceeded the margin of appreciation afforded to them and failed to demonstrate that there was a reasonable relationship of proportionality between the two instances of interference in question and the legitimate aim pursued. The Court thus concludes that it has not been shown that the interference was “necessary in a democratic society”.
Accordingly, there has been a violation of Article 10 of the Convention as regards the two sets of defamation proceedings against the applicant.
ARTICLE 6 § 1 OF THE CONVENTION
Having regard to the facts of the case and its finding of a violation of Article 10 of the Convention on account of the domestic courts’ failure to apply the relevant Convention standards and in the interests of brevity, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s complaints under Article 6 § 1 and 13 of the .
