CEDH · CASELAW;CLIN;ENG — 14 décembre 2006

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Russia - 29372/02 Judgment 14.12.2006 [Section V] Article 10 Article 10-1 Freedom of expression Editor-in-chief convicted of defamation for having written and published an article   labelling an anti‑Semitist as a “local neo-fascist”: violation   Facts : The applicant is the director-general and editor-in-chief of the newspaper Gorodskiye Vesti .In 1994 he published an article   with his personal account of talking to a partisan of the Russian National Unity movement, whom he had heard recite a verse mocking Jewish last names at a meeting organised by Mr   Terentyev, described as “the local neo-fascist”. The partisan was aggrieved by her precarious living conditions, resulting from the profound social and economic changes in Russia, and blamed the worsening of her situation on Jews. She confessed to being an avid reader of Mr   Terentyev's newspaper, Kolokol , also criticised in the piece. The article   concluded with the applicant's analysis of the current political situation, critical of social parasitism and witch-hunting. Mr   Terentyev successfully brought proceedings for defamation against the applicant and his newspaper concerning the description of him as a “neo-fascist”. The applicant appealed, supported by the district prosecutor who submitted, in particular, that the regional prosecutor had opened a criminal investigation on charges of incitement to ethnic hatred by the Kolokol newspaper. The applicant also asked the court to examine ten issues of Kolokol and to obtain an expert report and requested that the proceedings be adjourned pending investigation of the criminal case against Mr   Terentyev. His request was refused, the court having found that an expertise was not necessary and having preferred to rely on the expert reports made during the criminal proceedings against Mr   Terentyev. Those proceedings were later discontinued as Mr   Terentyev's actions were found to have lacked the constituent elements of a criminal offence. Later the court, in a new judgment, found that being designated a “neo-fascist” had defamed Mr   Terentyev as a public figure and the son of the Second World War veteran. As Mr   Terentyev was not a member of any neo-fascist party and the criminal charge of incitement to ethnic hatred had not been maintained against him, the court held the applicant responsible for having failed to prove the truthfulness of that expression. It awarded Mr   Terentyev RUR 30,000 against the applicant and RUR 15,000 against his newspaper. The applicant was also order to bear the court fees. On appeal those awards were reduced to RUR 5,000 and RUR 10,000 respectively. Law : The subject-matter of the article   at issue was part of a political debate on a matter of general and public concern, and very pressing reasons would need to be given to justify any restriction. The Court could not subscribe to the narrow definition of the term “neo-fascist” adopted by the Russian courts, as solely designating membership of a neo-fascist party. According to the regional prosecutor, the publications in Mr   Terentyev's newspaper targeted the Jewish religion and symbols, describing them in an inimical way, and propagated fallacious stories about the “world Jewish masonry”. Against that background, the Court considered that the term “local neo-fascist”, should be understood in the sense given to it by the applicant, namely describing a general political affiliation with the ideology of racial distinctions and anti-Semitism. Contrary to the view of the Russian courts, the Court considered that the term “local neo-fascist” was to be regarded as a value-judgment rather than a statement of fact. The requirement to prove the truth of a value judgment was impossible to fulfil and infringed freedom of opinion itself. Nevertheless, even a value-judgment without any factual basis to support it might be excessive. The Court noted however that the applicant had offered documentary evidence, including the past issues of the Kolokol newspaper and several reports by independent experts. Having examined those publications, the experts had found that they were anti-Semitic in nature and that their ideals were similar to those of National Socialism. In the Court's view, that material might have been relevant when proving that the value-judgment expressed by the applicant had been an acceptable comment. Apart from that documentary evidence, the applicant also had proposed that a further expert opinion be sought. The domestic courts, however, had refused to consider that evidence and had relied instead on a study carried out in the criminal proceedings against Mr   Terentyev on the charge of incitement to ethnic hatred. The Court was struck by the inconsistent approach of the Russian courts, on the one hand, requiring proof of a statement, and, on the other hand, refusing to consider the readily available evidence. The degree of precision for establishing the well-founded character of a criminal charge by a competent court could hardly be compared to that which ought to be observed by a journalist when expressing his opinion on a matter of public concern, for the standards applied when assessing someone's political opinions in terms of morality were quite different from those required for establishing an offence under criminal law. In sum, the use of the term “local neo-fascist” to describe Mr   Terentyev's political leaning did not exceed the acceptable limits of criticism. The standards applied by the Russian courts were not compatible with the principles embodied in Article   10 since they did not adduce “sufficient” reasons justifying the interference at issue. Accordingly, the interference was disproportionate to the aim pursued and was not “necessary in a democratic society”. Conclusion : violation (unanimously). Article   41 – EUR 1,000   for non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes