The awarding of excessive compensation to a member of parliament for harsh political statements violated the freedom of expression. Political speeches need more protection

JUDGMENT

Rashkin v. Russia  07.07.2020 (no. 69575/10)

see here 

SUMMARY

Politics and freedom of expression. A member of the opposition  was held responsible for defaming a government official in a harsh political speech. Huge damages awarded. Violation of the freedom of expression of the politician.

The accusing member of the opposition, in his speech, accused a member of the ruling party of crimes that burden them and that their shame should be washed away only with blood. The domestic courts sentenced him to pay compensation for non-pecuniary damage to the member of the government he criticized, the amount of approximately 25,640 euros. He filed a complaint for violation of the right to freedom of expression.

The ECtHR ruled by a majority that the domestic courts did not examine the context in which the comments in question were made, nor did they seek to strike a balance between the need to protect the plaintiff’s reputation and the applicant’s right to freedom of expression. Consequently, they did not apply standards that were in line with the principles set out in Article 10 of the ECHR and failed to provide relevant and sufficient reasons to justify the intervention.

With regard to excessive compensation, the ECtHR ruled by a majority that it did not pursue an “imperative social need” and was not “necessary in a democratic society”.

Violation of freedom of expression (Article 10 of the ECHR).

The applicant did not claim a specific amount of compensation or non-pecuniary damage but left it to the discretion of the court. The ECtHR did not award compensation because there was no specific claim. However, he claimed an amount of EUR 7,800 for non-pecuniary damage because it is not, by its nature, suitable for an accurate calculation and thus the Court is entitled to use its discretion.

COMMENT

An important decision on the scope of protection given by the ECHR to the freedom of expression and the application of proportionality to damages. In awarding pecuniary compensation, the national courts must apply the principle of proportionality in relation to the damage suffered by the plaintiff and the defendant’s financial situation and income.

Very useful and important is the initiative of the ECtHR to determine non-pecuniary damage despite the lack of a specific request of the applicant. The partial ex officio award of non-pecuniary damage further shields the negligent or uninformed applicants.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Valeriy Fedorovich Rashkin, is a Russian national who was born in 1955 and lives in
Saratov.

The case concerned his being found guilty of defamation for remarks he had made at a political rally.
In November 2009 the applicant, at the time a Member of Parliament from the opposition

Communist Party, made a speech in Saratov for the 92nd anniversary of the Bolshevik Revolution.
He accused various politicians of crimes against the nation, including Mr Volodin, a Member of
Parliament from the Saratov Region from the ruling United Russia party.

He said, among other things, that, “All these crimes weigh heavily on the powers that were behind
the 1991 coup, on the Yeltsins, Volodins, Sliskas, Medvedevs, and Putins. The crimes are on them
and can only be washed away with blood. With blood should they wash away the disgrace they have
brought upon us”.

Mr Volodin brought and won a defamation claim against the applicant, the court in April 2010
granting him damages of one million Russian roubles (25,640 euros). The judgment was upheld on
appeal.

The applicant complained under Article 10 (freedom of expression) about being found liable for
defaming another Member of Parliament.

THE DECISION OF THE COURT…

The Court accepts that the finding of the applicants liability and the award of damages against him constituted interference with his right to freedom of expression. The interference had a lawful basis, notably Article 152 of the Civil Code, which allowed an aggrieved party to seek the judicial protection of his reputation and claim compensation in respect of non-pecuniary damages. It also pursued a legitimate aim, that of protecting the reputation or rights of others, within the meaning of Article 10 § 2. It remains to be established whether the interference was “necessary in a democratic society”.

As regards the applicants position, the Court notes that he was a member of parliament from an opposition party. It reiterates that, while freedom of expression is important for everybody, it is especially so for elected representatives of the people. They represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for the closest scrutiny . Statements by members of parliament, whether made inside or outside the chambers of parliament, are political speech par excellence.  

The applicant made a speech at a meeting of the Communist Partys supporters. He named Mr Volodin among the past and present politicians whom he believed to be responsible for the ills that have befallen the country in the wake of the 1991 coup détat, an attempted seizure of power from the Soviet President Gorbachev which was claimed to have precipitated the demise of the Communist Party and the collapse of the USSR. His statement thus constituted a declaration of collective political responsibility rather than an accusation of specific criminal-law offences. As a form of political expression, it enjoyed a high level of protection under Article 10 of the Convention, since very strong reasons are required for justifying restrictions on political speech. The Court also reiterates that it is in the nature of political speech to be controversial and often virulent.

When considering Mr Volodins claim, the domestic courts did not address the context in which the impugned comments had been made or acknowledge the parties role as political actors. Their decisions were confined to the assessment of damage which Mr Volodins reputation may have suffered in connection with the applicants remarks and the lack of substantiation of what they considered to be factual allegations of criminal conduct. They failed to recognise that there was little scope under Article 10 § 2 of the Convention for restrictions on speech which, as the speech in the instant case, was political in nature. Nor did they attempt to perform a balancing exercise between the need to protect the plaintiffs reputation and the applicants right to freedom of expression. Those failings call for the conclusion that the domestic courts did not “apply standards which were in conformity with the principles embodied in Article 10” and failed to give relevant and sufficient reasons to justify the interference

Finally, as regards the severity of the sanction, the Court reiterates that unpredictably large awards in defamation cases are capable of having a chilling effect on the freedom of expression and therefore require the most careful scrutiny on its part. Mr Volodin was awarded RUB 1,000,000 in respect of non-pecuniary damage, that is to say more than EUR 25,000 at the material time. That award was unusually high in absolute terms but also many times higher in relation to awards in comparable defamation cases that have come before the Court.

The Court reiterates that awards of that magnitude will trigger a heightened scrutiny of their proportionality. An award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered. However, when making the pecuniary award against the applicant, the domestic courts failed to carry out a serious assessment of its proportionality in relation to the applicants financial situation and resources. As to their justification for granting such a large amount in damages because the plaintiff was a politician and a well-known public figure, this position sits ill with the Conventioncompliant approach that prominent political figures, such as a member of parliament for the ruling party in the instant case, should be prepared to tolerate strongly worded criticism and may not claim the same level of protection as a private individual unknown to the public, especially when the statement did not concern their private life or intrude on their intimacy . In these circumstances, the Court finds that a high award of damages to Mr Volodin did not pursue a “pressing social need” and was not “necessary in a democratic society”.

 Having regard to the Russian courts failure to apply the principles embodied in Article 10 of the Convention and the excessive amount of the award against the applicant, the Court finds a violation of that provision.

Just Satisfaction

The applicant asked the Court to determine the amount of compensation. The Government submitted that the claim was to be rejected because the amount claimed had not been specified. Pursuant to Rule 60 § 1 of the Rules of Court, an applicant who wishes to obtain an award of just satisfaction in respect of pecuniary damage or of costs and expenses must make a specific claim to that effect. Since in the present case the applicant failed to specify the amounts claimed, the Court makes no award under these heads. By contrast, since non-pecuniary damage does not, by its nature, lend itself to precise calculation, Rule 60 does not prevent the Court from examining claims for non-pecuniary damage which applicants did not quantify, leaving the amount to the Courts discretion. Making an assessment on an equitable basis, the Court awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable

 


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