CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 janvier 2023

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RUSSIA (Applications nos. 83662/17 and 46808/20)         JUDGMENT   STRASBOURG 10 January 2023   This judgment is final but it may be subject to editorial revision. In the case of Novaya Gazeta and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Georgios A. Serghides , President ,   Jolien Schukking,   Darian Pavli , judges , and Olga Chernishova, Deputy Section Registrar, Having regard to: the applications against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table, (“the applicants”), on the various dates indicated therein; the decision to give notice of the applications to the Russian Government (“the Government”) represented by Mr M. Vinogradov, Representative of the Russian Federation to the European Court of Human Rights; the parties’ observations; Having deliberated in private on 29 November 2022, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concern two sets of civil defamation proceedings against a publisher of a newspaper, Novaya Gazeta , and the journalists writing for it, in which the domestic courts found for the claimants – the CEO of Rosneft, a Russian State-owned oil exporter corporation, and the Federal Security Service. Application n o . 83662/17, Novaya Gazeta and Anin 2.     On 1 August 2016 the Novaya Gazeta newspaper published an article entitled “The secret of ‘Princess Olga’” (“the article”) authored by Mr Anin. In it, the journalist analysed Instagram posts by Ms O.S., the then spouse of Mr Igor Sechin, the CEO of Rosneft, the major State ‑ owned oil corporation, and publicly available sailing routes of the “St.   Princess Olga” megayacht. Pointing to six overlaps in terms of the yacht’s location and geotags of Ms   O.S.’s Instagram posts that had occurred over the course of three years, as well as to the resemblance of the publicly available images of the yacht to the photos posted by Ms O.S., the article suggested that Ms   O.S. had vacationed several times on that yacht which was owned by a company registered in the Cayman Islands. 3.     The article did not contain claims to the effect that the yacht was owned by Mr Igor Sechin or by Ms O.S. Prior to publication, the newspaper had sought comment from Mr Sechin asking whether the yacht had belonged to him or his spouse. In response, the press office of Rosneft had sent a letter refusing to provide information and expressing regret that the request for information had formed part of a targeted smear campaign against the corporation and its head. An extract from that letter was published in the article. 4.     Mr Igor Sechin brought defamation proceedings against the editorial board of the newspaper and Mr Anin. On 10 October 2016 the Basmannyy District Court of Moscow (“the District Court”) found that the defendants had tarnished Mr Sechin’s honour, dignity and business reputation and ordered the applicant company to publish a retraction. The Moscow City Court (“the City Court”) upheld the judgment on 30   November 2016. 5.     The applicants published a court-ordered retraction. Their cassation appeals were unsuccessful. Application n o . 46808/20, Novaya Gazeta and Zhilin 6.     On 28 January 2019 the Novaya Gazeta newspaper published an article entitled “Khusnidin must confess he blew up a house” (“the article”) authored by Mr Zhilin. It was an interview with the wife of Mr   Khusnidin   Z., a Kyrgyzstani national arrested on 25 January 2019, in which the interviewee voiced her husband’s allegations that he had been severely ill-treated by officers of the Federal Security Service of Russia (the FSB), while detained on the premises of a local police station. The ill ‑ treatment had been administered with a view to extracting a confession related to a terror attack – the explosion of a block of flats in Magnitogorsk. 7.     On 29 January 2019 the newspaper’s website published a news item by Mr   Zhilin, “The prosecutor’s office: the migrant who had alleged torture in the hands of the Magnitogorsk police withdrew his allegations. But he had been talking about torture in [the hands of the] FSB” (“the news item”). A   follow ‑ up to the interview, it reported on the phone conversation between Mr   Zhilin and the interviewee that had taken place after the publication of the article. 8.     On 11 March 2019 the FSB brought civil defamation proceedings against the applicant company and Mr   Zhilin seeking a retraction and deletion of the impugned publications from the website. The defendants presented records of the interview and the phone conversation as well as a copy of the statement given to their counsel by Mr Khusnidin Z. and his wife detailing the alleged ill ‑ treatment by officers of the FSB. 9.     On 26   April 2019 the District Court found that the impugned publications had tarnished the business reputation of the FSB and ordered the applicant company to publish a retraction and to delete the impugned article from the newspaper’s website. The fact that the statements had emanated from a third person was considered irrelevant. The City Court upheld the judgment on appeal on 10 July 2019. 10.     The applicants deleted the impugned publications from the website and published a court-ordered retraction. Their cassation appeals at two levels were unsuccessful. Common elements of applications n os . 83662/17 and 46808/20 11.     The District and City Courts, finding for the claimants, limited themselves to establishing three elements: (i)   whether the defendants had disseminated impugned statements; (ii)   whether the statements had been of tarnishing nature; and (iii)   whether the statements had been untruthful. They found it established that the defendants had disseminated impugned statements of tarnishing nature and had not furnished proof to their truthfulness, without considering the role of the press in a democratic society or attempting to balance the competing interests. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 12.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 13.     The applicants complained before the Court that the domestic courts’ judgments in the civil defamation proceedings brought against them by persons close to the Kremlin had amounted to a disproportionate interference with their right to freedom of expression guaranteed by Article 10 of the Convention. 14.     The Court notes that the applicants’ complaints under Article   10 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 15 .     As regards application no. 46808/20 concerning the proceedings brought by a State agency against the publisher of a newspaper and a journalist, the Court reiterates that civil defamation proceedings brought, in its own name, by a legal entity that exercises public power may not, as a general rule, be regarded to be in pursuance of the legitimate aim of “the protection of the reputation ... of others” under Article   10 §   2 of the Convention (see OOO Memo v. Russia , no. 2840/10, §   47, 15   March 2022). It follows that the civil defamation proceedings instituted by the FSB of Russia against the applicant company and Mr   Zhilin did not pursue any of the legitimate aims enumerated in paragraph   2 of Article   10 of the Convention. Where it has been shown that the interference did not pursue a “legitimate aim”, it is not necessary to investigate whether it was “necessary in a democratic society” (ibid., § 49). 16.     As regards application no. 83662/17, it is not in dispute between the parties that the civil defamation proceedings brought by Mr Igor Sechin amounted to an interference with the applicants’ right to freedom of expression, as well as that each instance of the interference was “prescribed by law” and pursued a legitimate aim of “the protection of the reputation ... of others”. It remains to be established whether they were “necessary in a democratic society” (see Satakunnan Markkinapörssi Oy and Satamedia Oy v.   Finland [GC], no. 931/13, §   160, 27   June 2017). The relevant general principles of the Court’s case-law have been summarised in Bédat v.   Switzerland ([GC], no. 56925/08, §§ 48-54, 29   March 2016). 17.     When examining the defamation claims against the applicants brought by Mr Igor Sechin, a public figure in his capacity of the CEO of Rosneft, the domestic courts did not assess whether the impugned statements represented value judgments not susceptible of proof rather than statements of fact (see Tolmachev v.   Russia , no. 42182/11, §   50, 2 June 2020), or whether such statements should be seen in the context of the claimant’s position as a public figure required to   display a greater degree of tolerance (see Redaktsiya Gazety Zemlyaki v.   Russia , no.   16224/05, §   42, 21   November 2017), or whether the article had touched upon a matter of public interest (see Fedchenko v.   Russia (no.   3) , no.   7972/09, §   47, 2   October 2018), or whether it had been based on open ‑ source information already available to the public. The domestic courts appear to have acted on the assumption that Mr Sechin’s interest in protecting his reputation prevailed over the defendants’ interest in informing the public, thus failing to strike a fair balance when protecting the two competing values guaranteed by the Convention (see Skudayeva v.   Russia , no. 24014/07, §   46, 5 March 2019). 18.     The Court has previously found a violation of Article 10 of the Convention in a large number of cases concerning freedom of the media in Russia for the reason that the domestic courts had failed to apply the Convention standards when deciding on a defamation dispute (see, among many others, OOO Ivpress and Others v. Russia , nos.   33501/04 and 3 others, §   79, 22 January 2013; Kunitsyna v. Russia , no. 9406/05, §§   46-48, 13   December 2016; Terentyev v.   Russia , no.   25147/09, §§   22-24, 26 January 2017; OOO   Izdatelskiy Tsentr Kvartirnyy Ryad v. Russia , no.   39748/05, §   46, 25   April 2017; Skudayeva , cited above, §   39; Novaya Gazeta and Milashina v.   Russia , no.   4097/06, §§   66 ‑ 73, 2 July 2019; Tolmachev , cited above, §   47; and Rashkin v.   Russia , no.   69575/10, §   18, 7 July 2020). 19 .     Having carefully examined the case materials and the parties’ submissions before it, the Court concludes that in the proceedings instituted by Mr Igor Sechin the domestic courts did not give due consideration to the principles and criteria laid down in 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 instances of interference in question and the legitimate aim pursued (see, with further references, Tolmachev , cited above, § 56, and Timakov and OOO ID Rubezh v. Russia , nos. 46232/10 and 74770/10, § 71, 8   September 2020). Nothing in the Government’s submissions indicates otherwise. It thus has not been shown that the interference complained of in application no. 83662/17 was “necessary in a democratic society”. 20.     In view of its findings (see paragraphs 15 and 19 above), the Court concludes that there has been a violation of Article   10 of the Convention in respect of each applicant and on the account of each set of defamation proceedings complained of. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     The applicant company claimed 20,000 euros (EUR), while Mr   Anin and Mr Zhilin claimed EUR 10,000, each, in respect of non-pecuniary damage. 22.     The Government did not comment on the applicants’ claims. 23.     Having regard to the documents in its possession, the Court considers it reasonable to award EUR 7,500 to the applicants jointly in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 10 of the Convention; Holds (a)   that the respondent State is to pay the applicants jointly EUR 7,500 (seven thousand five hundred euros) within three months, plus any tax that may be chargeable, within three months, in respect of non ‑ pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 10 January 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Olga Chernishova   Georgios A. Serghides   Deputy Registrar   President     APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Year of Birth Place of Residence Nationality Represented by 1. 83662/17 Novaya Gazeta and Anin v.   Russia 27/11/2017 ANO “Redaktsionno-Izdatelskiy Dom ‘NOVAYA   GAZETA’” Legal entity under Russian law Mr Roman Aleksandrovich ANIN 1986 Yaroslavl Russian Mr Yaroslav Sergeyevich KOZHEUROV   2. 46808/20 Novaya Gazeta and Zhilin v.   Russia 26/09/2020 ANO “Redaktsionno-Izdatelskiy   Dom ‘NOVAYA   GAZETA’” Legal entity under Russian law Mr Ivan Olegovich ZHILIN 1991 Moscow Russian Mr Yaroslav Sergeyevich KOZHEUROV