Municipal councils are public authorities and are bound to tolerate stricter criticism. The intervener has the right to appeal, as does the defendant, since his freedom of expression has been violated. NGOs have the same level of protection as the press.
JUDGMENT
Margulev v. Russia 08.10.2019 (no. 15449/09)
SUMMARY
The case concerned the head of a conservation NGO whose comments in a newspaper article were
found to have defamed Moscow City Council.
The Court first found that although the applicant was a third-party to the dispute rather than the
direct object of the defamation proceedings, he could still claim to be a victim of an alleged violation
of his right to freedom of expression.
The domestic courts had failed to weigh up each party’s rights, involving questions such as the good
faith or otherwise of the defendant or whether the statements had been value judgments or
statements of fact, or whether there had been a direct link between what the article had said and
the alleged infringement to the council’s right to reputation.
The courts had failed to provide a proper justification for the interference with the applicant’s right
to freedom of expression and there had been a violation of Article 10.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Andrey Igorevich Margulev, is a Stateless national who was born in 1953 and lives in
Moscow.
Mr Margulev was the head of a non-governmental organisation (NGO) which was created to help
preserve the 18th century Tsaritsyno complex outside Moscow.
In October 2007 he was quoted by the newspaper Moskovskiy Korrespondent as criticising
restoration works at the complex, being funded by Moscow City Council. The article suggested that
the work had affected the old English landscaped garden on the grounds of the complex. It included
a quote by the applicant describing the works as “the desecration of a historical monument”.
The Council took the newspaper’s editorial board to court for defamation and Mr Margulev joined
the proceedings as a third party. In July 2008 the court found for the council on the grounds that the
defendant had not provided proof for the statements.
The applicant and the newspaper’s editorial board appealed, arguing that Mr Margulev’s statements
had been value judgments that were not susceptible of proof. Moscow City Court upheld the
decision in September 2008. The newspaper’s editorial board was ordered to pay for a retraction in
another newspaper of similar size and circulation.
THE DECISION OF THE COURT…
Admissibility
The Government argued in particular that Mr Margulev did not have the status of a victim of a
violation of his rights as he was not the defendant in the proceedings, just a third party.
Mr Margulev submitted that when he had applied to act as a third party he had specifically stated
that his aim was to protect his freedom of expression, something the first-instance court had
accepted by admitting him to the proceedings. The defamation finding had also had a chilling effect
on him as he had had to reduce his activities, such as giving interviews critical of the restoration.
The Court reiterated that the term “victim” used in the Convention referred to someone who had
been directly affected by the act or omission at issue.
It noted that the courts had admitted Mr Margulev as a third party and had thus tacitly accepted
that his rights were at stake – the Court accepted this interpretation too. It was thus satisfied that
his rights and obligations had been at issue and that his freedom of expression had been affected.
It also held that he had been expressing his opinion on a matter of public interest, which he had
been restricted from doing after the defamation verdict. It thus held that there had been an
interference with his rights.
The government had also objected that Mr Margulev had not suffered a “significant disadvantage”,
another of the Convention’s admissibility rules. However, the Court noted that Mr Margulev’s
subjective view was that he had suffered a chilling effect from the verdict in a case which, in its view,
had concerned important questions of principle. It was thus satisfied that he had suffered a
significant disadvantage from the defamation proceedings.
Merits
The main issue for the Court was whether the interference had been justified, or “necessary in a
democratic society”. It took account of the fact that Mr Margulev was the head of an NGO and that
when such bodies drew attention to matters of public interest they were performing “watchdog
roles” similar to the press. It therefore applied its standards for press protection to the case.
Among other factors, that involved an examination of whether a party had acted in good faith; the
high level of protection given to freedom of expression on matters of public interest; the wider limits
of public criticism which politicians and civil servants acting in their official capacity had to accept;and the careful distinction to be made between facts, which could be proved, and value judgments, which could not.
Examining the Russian courts’ judgment that the statements had tarnished Moscow City Council’s
business reputation, it noted that they had failed to take account of a number of such key factors.
Nor had the courts carried out a balancing exercise, failing for instance to recognise that Moscow
City Council was a constituent entity of the Russian Federation and the wider limits of permissible
criticism when it came to public authorities. In addition, they had rejected the defendant’s argument
that the council had not been named in the article, going against an important Convention
consideration that there had to be an objective link between an impugned statement and the party
bringing a defamation claim.
The first-instance court’s reasoning, endorsed on appeal, appeared to be based on the tacit
assumption that protection of reputation prevailed in all circumstances over freedom of expression.
Overall, the domestic courts had not carried out the necessary exercise to balance the parties’ rights,
had not provided relevant and sufficient reasons to justify the interference with his rights and had
not applied standards that were in conformity with the Convention. The interference had thus not
been necessary in a democratic society and there had been a violation of Article 10.
Just satisfaction (Article 41)
The Court held that Russia was to pay the applicant 3,000 euros (EUR) in respect of non-pecuniary
damage and EUR 957 in respect of costs and expenses.
