Large defamation award for moral damage due to public statement against mayor that allegedly controls justice, violated freedom of expression

JUDGMENT

Savenko (Limonov) v. Russia  26.11.2019 (no.  29088/08)

see here 

SUMMARY

Political figures, protection, criticism and limits to freedom of expression.

In an interview with a radio station, the opposition politician freely expressed his view of the control and influence of justice by the Mayor of Moscow. The latter brought an action for damages for defamation and the domestic courts irrevocably awarded the applicant EUR 14,000 in respect of non-pecuniary damage.

Strasbourg recalled that the level of acceptable criticism must be higher when it comes to politicians than citizens and that politicians must accept the highest level of criticism. He disagreed with the assessment of the national courts that the infringement of a public person was of greater value than that of a mere citizen.

According to the ECtHR, the live radio talk in which the applicant participated was to a greater extent exaggerated and the oral argument could not be subjected to the same precision standard as the written one. In a radio interview he had expressed outrage at what he found, based both on his experience and on the testimonies of third parties who had lost court cases related to the mayor of Moscow.

The Court also took note of the Government’s observations, which showed that the courts had not ruled against the Mayor in previous cases, giving a concrete factual basis to the applicant’s strong reaction. The Court found that the national courts had failed to comply with the requirements of Article 10 to balance the parties’ interests in the case.

It also noted that unexpectedly large amounts of financial compensation for moral damages in cases of defamation could have a detrimental effect on freedom of expression.

The Court has found a violation of freedom of expression (Article 10).

PROVISION

Article 10

PRINCIPAL FACTS 

The applicant, Eduard Savenko, is a Russian national who was born in 1943 and lives in Moscow. He
is an opposition politician and author who writes under the nom de plume Eduard Limonov.

Mr Savenko took part in a live radio debate in 2007 on Radio Free Europe/Radio Liberty (RFE/RL),
which focussed on a court decision upholding a refusal by the Moscow authorities to authorise a
rally, known as the Dissenters’ March. Mr Savenko, one of the leaders of a broad coalition of
opposition groups involved in organising such rallies, expressed the view that the Moscow courts
were controlled by the mayor of Moscow.

The mayor lodged a defamation claim against Mr Savenko, which a district court in Moscow granted
in full. The court found that his statement had implied that the courts were not independent
because they had never found against the mayor.

This judgment was upheld on appeal in 2008 by the Moscow City Court, which further found that
Mr Savenko’s statement had undermined public confidence in the authorities, and that it had caused
particular moral suffering to the mayor, who was not an ordinary citizen but an elected head of the
executive.

The court awarded the mayor the full amount of damages that he had claimed, ordering Mr Savenko
and the radio station to each pay 500,000 roubles (approximately 14,000 euros) to him.
The courts subsequently denied Mr Savenko’s request to pay the award in instalments and then, in
2009, permanently restricted his right to leave Russia as he had failed to pay the amount in full.

THE DECISION OF THE COURT…

The Court found that there had been an interference with Mr Savenko’s right to freedom of
expression. It noted the applicant’s position as the leader of a broad coalition of opposition groups
and that his comments had been made during a radio debate on the courts’ approval of a ban on a
march. His statement had touched on issues – the exercise of political rights and the functioning of
the judiciary – which were matters of public interest and which had a high level of protection under
Article 10. States had only narrow leeway to suppress such speech.

Although the statement had focussed on the courts, it had been the mayor of Moscow who had
taken issue with it and had sued Mr Savenko. However, the level of acceptable criticism should be
higher in respect of politicians than it is for private individuals.

The live debate which the applicant was taking part in had allowed for a greater degree of
exaggeration and spoken words could not be held to the same standard of accuracy as written
assertions. The statement had conveyed his indignation at what he had seen as another rejection of
a lawful demand against the Moscow government, based both on his own experience and that of
others who had lost cases involving the Moscow mayor.

The Court also took account of submissions from the Government, which showed that the courts
had not found against the mayor in any previous cases, lending a certain factual basis to Mr
Savenko’s strong reaction. The Court found that the domestic courts had thus failed to abide by the
requirements of Article 10 to balance the interests of the parties in the case.

It also observed that unpredictably large awards of damages in defamation cases could have a
chilling effect on freedom of expression and required careful scrutiny. The award against Mr
Savenko was high in absolute terms and when compared with other Russian defamation cases the
Court had dealt with.

The Court disagreed with the City Court’s assessment on appeal that the suffering of the elected
head of an executive had a greater value than that of an ordinary citizen. Such a finding was not
compatible with the Convention approach that figures like the Moscow mayor should accept
strongly worded criticism and could not claim the same level protection as a private individual who
was not known to the public, especially when a statement did not concern their private life.

Furthermore, the impact of the award had been shown by the fact that the applicant had struggled
to pay it, which had led to a permanent restriction on his right to leave Russia.

The Court concluded by finding a violation of the applicant’s rights protected by Article 10 owing to
the courts’ failure to apply the principles embodied in that provision and to the excessive award.

Just satisfaction (Article 41)

The Court held that Russia was to pay the applicant 11,700 euros (EUR) in respect of pecuniary
damage and EUR 7,800 in respect of non-pecuniary damage(echrcaselaw.com).


ECHRCaseLaw

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