A newspaper wrote that the Governor must receive the highest mark for corruption. Convictions for large damages. Violation of freedom of expression

JUDGMENT

Timakov and OOO ID Rubezh and Timakov v. Russia  08.09.2020 (app. no. 46232/10 and 74770/10)

see here

SUMMARY

Freedom of expression. Journalist comment that the Governor must receive the highest mark for corruption. Right to a public hearing in a civil case.

The journalist and his publishing house were obliged, following court decisions on a lawsuit, to pay 50,000 euros for defamation to the Governor. In order to enforce the judgments, the bailiffs confiscated the first applicant’s household items (including his daughter’s piano), while the second applicant’s publishing house was disbanded due to its inability to pay the damages awarded.

According to the ECtHR, the domestic courts did not take into account the defendants’ financial situation. Instead, the “social position” of the Regional Governor was given dominant weight. The Court considered that interference with the applicants’ right to freedom of expression was not “necessary in a democratic society”. Violation of the right to freedom of expression (Article 10 of the ECHR).

Civil proceedings in the court of first instance in camera. The ECtHR held that the fact that the proceedings before the appellate court were subsequently public was not sufficient to remedy the lack of a public hearing before the appellate court. Violation of the right to a public hearing (Article 6 of the ECHR).

PROVISIONS

Article 10

Article 6

PRINCIPAL FACTS

The applicants are Vladimir Viktorovich Timakov, a Russian national, and an editorial and publishing
house in which he has shares, OO ID Rubezh, based in Tula (the Russian Federation). The applicant
company edited and published a local newspaper, Za Sechnyy Rubezh.

The case concerned two sets of defamation proceedings brought against the applicants by the
former Governor of the Tula Region in response to news items expressing the view that he was
corrupt.

In the first set of proceedings, the governor complained about the publication of an article in May
2009 written by Mr Timakov in Za Sechnyy Rubezh, alleging corruption in the office of the Governor.
The Governor brought a second set of proceedings with regard to a post in April 2009 on the local
news website Tul’skiye Novosti quoting Mr Timakov as saying that the Governor deserved the
highest mark for corruption.

The domestic courts ruled against the applicants in both sets of proceedings. Emphasising the
importance of the Governor’s status as the “highest official of the Tula Region”, they found that the
statements in the article and the interview with Mr Timakov were untrue and discredited the
Governor.

The courts awarded the Governor 2,000,000 Russian roubles (approximately 50,000 euros) in
damages. The applicant company was dissolved and the bailiffs’ service decided to seize Mr
Timakov’s household items during the ensuing enforcement proceedings because they did not have
sufficient funds to pay the awards.

In parallel, the Governor brought criminal proceedings against Mr Timakov for libel in connection
with the statements that had been found defamatory in the second set of civil proceedings. They
were ultimately terminated in 2010 for lack of elements showing that a crime had been committed.

The Governor was dismissed from office amid allegations of bribery in 2011. He was found guilty of
accepting bribes and sentenced to nine years and six months’ imprisonment in 2013.
Relying on Article 10 (freedom of expression) of the European Convention, the applicants
complained about the domestic court judgments against them, alleging that they had given
heightened protection to the Governor’s reputation, without taking into account Mr Timakov’s
position as a journalist and member of the regional legislature who was commenting on a matter of
public interest.

Also relying on Article 6 § 1 (right to a fair hearing), the applicants complained that the first-instance
court had held the first set of defamation proceedings in camera.

THE DECISION OF THE COURT

Violation of Article 10

a) Civil proceedings for defamation

The Court furthermore observes that the amounts awarded to Mr D. in the two above-mentioned sets of proceedings were very substantial. It is the Courts consistent case-law regarding defamation proceedings against journalists that the nature and severity of the penalties imposed are further factors to be taken into account when assessing the proportionality of an interference. Furthermore, the Court must be satisfied that the penalty does not amount to a form of censorship intended to discourage the press from expressing criticism. In the context of a debate on a topic of public interest, such a sanction is likely to deter journalists from contributing to the public discussion of issues affecting the life of the community. By the same token, it is liable to hamper the press in performing its task as a purveyor of information and as a public watchdog.

The applicants emphasised that they had experienced the chilling effect of the disproportionately high awards . The Court accepts this argument, as the fact that the bailiffs service had to resort to levying execution on and eventually seizing household items – including the piano that Mr Timakovs daughter had played – serves as a graphic illustration of the fact that the amount awarded to Mr D. by the judgment of 22 September 2009 (which was upheld on 18 March 2010) was largely beyond the financial resources available to the applicant. The adverse effect that the large award had on the applicant company – it was forced into dissolution because of its inability to pay off the judgment debt  – is even more salient. Yet nothing in the judgments of 25 August and 22 September 2009 (as upheld on 4 February and 18 March 2010, respectively) suggests that the domestic courts took into consideration, however briefly, the financial situation of the defendants or contemplated whether an award would be proportionate in the particular respective circumstances of each case. Instead they yet again attached preponderant weight to the Governors social status – thus failing to apply the relevant Convention standards.

The above elements lead the Court to conclude that the reasons that the domestic courts cited in justifying the interference with the applicants right to freedom of expression in the two sets of civil defamation proceedings may be described as “relevant” yet cannot be regarded as “sufficient”. The domestic courts did not give due consideration to the principles and criteria as laid down by the Courts 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”.

(b)   Criminal proceedings for libel

 The Court furthermore notes that Mr Timakov, in addition to having to pay a disproportionately high price for expressing his opinion as a journalist and as a member of the regional legislature regarding Mr D.s professional performance, was subject to criminal prosecution for libel in respect of a statement that had been deemed (in the course of those civil proceedings) defamatory. Given that both the civil defamation proceedings that the Court has assessed above  and the criminal proceedings for libel stemmed from the same statement and ran for some time in parallel, the Court does not consider it necessary to address the remaining instance of interference (in the form of criminal proceedings for libel).

(c) Conclusion

The Court considered that the interference with the applicants’ right to freedom of expression was not “necessary in a democratic society” and that there was a violation of freedom of expression (Article 10 of the ECHR).

Violation of Article 6 § 1

The ECtHR observed that neither the District Court nor the Government had put forward specific reasons that could justify the trial in closed court in a civil dispute. The mere reference to “exceptional circumstances” was not sufficient to circumvent a fundamental principle enshrined in Article 6 § 1 of the Convention, namely that a court hearing should be held in public. Consequently, the fact that the appeal procedure before the District Court was public was not sufficient to remedy the lack of a public hearing before the District Court of First Instance. The Court found that there had been a violation of the right to a public hearing (Article 6 § 1 of the Convention).

Just satisfaction: EUR 1,542 to Mr Timakov in respect of pecuniary damage, EUR 9,750 to Mr Timakov and EUR 2,925 to Mr Leonov in respect of non-pecuniary damage, and EUR 5,410 to Mr Timakov, in respect of costs and expenses.


ECHRCaseLaw

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