Russian journalists convicted of ‘insult’ had article 10 rights violated

The case concerned the criminal conviction, for insult, of a journalist and the editor-in-chief of the newspaper in which the offending article had been published.

The court found that the offending article had sought to complain of corruption on the part of the mayor of Novocherkassk. A subject of that type was a matter of public concern and discussion of it contributed to political debate.

It noted that the domestic courts had not at any stage weighed the right to respect for his reputation of MV, mayor of Novocherkassk, who had been targeted by the article, against the right to freedom of expression of Ms Nadtoka, the editor-in-chief.

In the court’s view, that was a problematical omission. The court pointed out that the authorities had enjoyed only particularly limited room for manoeuvre, and concluded that the interference complained of by Ms Nadtoka had not been “necessary in a democratic society” for the protection of the reputation and rights of others.

The applicant, Yelena Mikhaylovna Nadtoka, is a Russian national who was born in 1957 and lives in Novocherkassk in Russia.

In January 2004, when Ms Nadtoka was acting editor-in-chief, the newspaper Vecherniy Novocherkassk published an article which included the phrase “some thievish man from Altay who had taken up a comfortably high position” to refer to MV, who was then the mayor of Novocherkassk. MV brought a private prosecution for insult against the journalist who wrote the article and against Ms Nadtoka.

On 1 November 2004 the Justice of the Peace found the journalist guilty of insult and fined her 10,000 roubles (RUB). Ms Nadtoka was fined RUB 50,000 (about €1,364 euros), as the judge found her to be an accessory to the offence.

Ms Nadtoka appealed but the Novocherkassk Town Court upheld the judgment, finding that the offending phrase, considered on the basis of the circumstances of the case in their entirety, was definitely an insult. The Rostov Regional Court upheld the conviction on a further appeal.

The court found that the article in question had sought to complain of corruption on the part of the mayor of Novocherkassk. A subject of that type was a matter of public concern and discussion of it contributed to political debate. The court observed that MV had not complained of the content of the offending comments but of their form and that the judge had confined himself to determining whether the comments were “indecent” within the meaning of article 130 of the Criminal Code.

The point had not been addressed in the domestic proceedings as to whether or not there had been a sufficient factual basis for the journalist’s criticism of MV. The only question submitted for examination by the court was therefore whether the judge had exceeded his room for manoeuvre (“margin of appreciation”) by convicting Ms Nadtoka on the grounds that the terms used in the article were “indecent”.

The court reiterated that anyone taking part in a public debate on a matter of general concern was required to respect the reputation and rights of others, but was allowed to have recourse to a degree of exaggeration or even provocation. Moreover, it was noteworthy that MV, as mayor, had necessarily been exposed to close scrutiny of his words and deeds and to criticism. He had therefore been required to exercise particular tolerance in that respect, including towards the form of criticism used.

The court observed that Ms Nadtoka had been convicted as an accessory to the offence and ordered to pay a fine, so in that respect alone the measure imposed on her was already very serious. However moderate, a criminal sanction was still a penalty and was liable to have a chilling effect on the exercise of freedom of expression. Furthermore, the court noted that the amount of the fine imposed on Ms Nadtoka was far from being insignificant.

The court pointed out that the authorities had enjoyed only particularly limited room for manoeuvre, and concluded that the interference complained of by Ms Nadtoka had not been “necessary in a democratic society” for the protection of the reputation and rights of others. There had therefore been a violation of article 10 of the Convention.

The court held that Russia was to pay Ms Nadtoka €4,000 euros in respect of non-pecuniary damage and €1,992 for costs and expenses.