5.  The applicant company, an editorial and publishing house registered in Moscow, edits and publishes a national newspaper with a circulation of 500,000, the Novaya Gazeta (“the newspaper”). The second applicant was born in 1977 and lives in Moscow.
6.  At 11.30 a.m. on 12 August 2000 K-141 Kursk, a nuclear cruise missile submarine of the Russian Navy (“the Kursk”), sank as a result of explosions on board while in the Barents Sea on a naval training exercise. Most of the crew died within minutes of the explosions. However, twenty‑three crew members (of the 118 aboard) survived the explosions and gathered in a stern compartment. They wrote a note to report the events. All of these twenty-three men died on board the Kursk before the arrival of a rescue team. It is not known for certain how long the men remained alive after the explosions. However, it was established later that they had died in a fire caused by oily sea water coming into contact with the equipment, which had triggered a chemical reaction.
7.  In case no. 29/00/0016-00 (“the investigation”), the Chief Military Prosecutor’s Office launched an official investigation into the accident under Article 263 § 3 of the Russian Criminal Code (a provision on “a breach of safety procedures while using a means of transportation which causes the death of two or more persons by negligence”).
8.  On 22 July 2002 the Chief Military Prosecutor’s Office terminated the investigation for lack of evidence of a crime. The prosecutors found that there had been minor technical defects in the Kursk and certain omissions in the organisation and conduct of the naval exercise and the rescue operation. However, they found that it was impossible to establish a causal link between those defects and omissions and the sinking of the submarine and the death of the crew members. In particular, they established that the twenty-three crew members in the ninth compartment had died as a result of fire and asphyxiation within eight hours of the explosions. In view of the rapidity of their death, any attempt to rescue them would have been futile.
9.  On 30 December 2002 B.K., counsel for the relatives of the deceased members of the Kursk crew, challenged the decision to terminate the investigation before the Chief Military Prosecutor. On 4 January 2003 his complaint was dismissed. B.K. challenged both decisions in court.
10.  On 21 April 2004 the Military Court of the Moscow Garrison confirmed the decision of 22 July 2002. On 29 June 2004 the Appeal Tribunal of the Military Court of the Moscow Garrison upheld the judgment on appeal.
11.  Between 2000 and 2005 the applicant company published in the newspaper a number of articles written by the second applicant covering the Kursk catastrophe and the investigation into it.
12.  On 11 August 2003 the newspaper published an editorial written by the second applicant. It was timed to commemorate the third anniversary of the Kursk catastrophe. The article appeared under the headline “The Kursk case must be reopened” («Дело «Курска» надо открывать заново»), followed by a subtitle “Those wearing military rank insignia are among those responsible for the wreck of the submarine and the death of its crew” («В гибели лодки и экипажа есть виновные в погонах»).
13.  The article criticised the authorities for their decision to discontinue the investigation. It began by congratulating the investigators on their hard and meticulous work and their discovery of many omissions by senior officers of the Navy. It further alleged that there were reasons to believe that the investigators had made the conclusion about the absence of a causal link between the naval officers’ omissions and the death of the Kursk crew members under pressure. The article reproduced excerpts from the complaint lodged by B.K. against the decision to discontinue the investigation. The complaint had contested the investigators’ findings and presented an alternative interpretation of the evidence collected. The article went on to suggest that the authorities should pay close attention to B.K.’s arguments and reconsider their decision not to prosecute the senior naval officers.
14.  The article further described the authorities’ fierce reaction to B.K.’s complaint. The reaction of V.K., the chief forensic expert of the Russian Ministry of Defence, had been particularly harsh, as he had publicly accused B.K. of making a reputation for himself out of the Kursk catastrophe. The article continued as follows:
“V.K. presided over the panel of medical experts (which means that he was responsible for collating all the medical expert opinions in the case file). ...
The expert examination performed by V.K. ... [was] not supposed to be key evidence, BUT [IT] BECAME DECISIVE[1], as [the expert] pursued a specific aim: to prove that twenty-three crew members in the ninth compartment had died no later than eight hours after the explosion in the Kursk.”
15.  The article suggested that the expert findings made by V.K. were particularly convenient for the naval officers responsible for the belated commencement of the rescue operation. Those findings indicated that even if the rescue operation had commenced in good time, it would have been in any event impossible to rescue the men in the ninth compartment, in view of the rapidity of their death. Hence, the conclusion that there was no causal link between the omissions during the rescue operation and the death of the crew members. The article then continued:
“This is the aim pursued by V.K. in his expert examination: to help the naval officers in charge of the rescue operation avoid criminal responsibility. V.K. uses bizarre wording: ‘Died no later than four and a half to eight hours after the explosion[2] in the Kursk’. However, in the earlier expert reports it was mentioned that the crew [had] died [several hours] after the ignition of the fire[3] in the ninth compartment, and that it was not possible to establish the time of the ignition. The case file does not contain any proof of a causal link between the explosion and the fire in the ninth compartment. ...
The fire in the ninth compartment ... started a considerable time after the explosion and the sinking of the Kursk. What V.K. did is called distortion of the facts («подтасовка фактов»). However, the investigators preferred not to notice this distortion, and to make official findings on the basis of V.K.’s expert opinion.”
16.  The article further mentioned that independent experts had found it impossible to scientifically establish the crew members’ exact time of death. V.K.’s findings were not scientifically based, and his military rank gave reason to believe that he was biased.
17.  V.K. brought defamation claims against the applicants before the Basmannyy District Court of Moscow (“the District Court”). He sought a retraction of the following four statements that, in his view, had tarnished his honour, dignity and business reputation:
[1]  “[The expert] pursued a specific aim: to prove that twenty-three crew members in the ninth compartment had died no later than eight hours after the explosion in the Kursk.”
[2]  “This is the aim pursued by V.K. in his expert examination: to help the naval officers in charge of the rescue operation avoid criminal responsibility.”
[3]  “V.K. uses bizarre wording: ‘Died no later than four and a half to eight hours after the explosion in the Kursk’.”
[4]  “What V.K. did is called distortion of the facts.”
18.  V.K. also sought compensation for non‑pecuniary damage and legal costs.
19.  On 6 November 2003 the District Court dismissed the claim in full. It found that the first impugned statement was a true statement of fact. It was undisputed that V.K. had performed a medical expert examination and had found that the submarine crew had died within four and a half to eight hours of the explosion of the submarine. The remaining statements about the aims pursued by V.K. and the alleged distortion of the facts were the second applicant’s opinions based on a sufficient factual basis. They did not contain any allegations of violations of laws or moral principles by V.K. Therefore, they were not damaging to his honour, dignity or business reputation.
20.  On 14 May 2004 the Moscow City Court (“the City Court”) quashed the judgment on appeal. It found that the District Court had erred in finding that the statements published by the applicants did not amount to an allegation of a violation of laws by V.K. As an expert in a criminal investigation, he had been bound by the rules of conduct established for experts by the Criminal Procedure Code. Allegations regarding an expert having improper aims and distorting the facts amounted to an accusation regarding him or her giving a biased expert opinion in violation of those rules. Moreover, in the City Court’s view, a journalist could not claim exemption from liability for defamation on the grounds that he or she was expressing an opinion if that opinion was damaging to a third party’s honour or dignity. The case was referred to the District Court for re‑examination.
21.  On 6 December 2004 the District Court granted V.K.’s claims in part. Referring to Resolution no. 11 of the Plenary Supreme Court (see paragraph 30 below), it emphasised that in a defamation case the only thing that a claimant had to prove was the fact that there had been dissemination of an impugned statement by a respondent. It also emphasised that the burden of proof as regards the truthfulness of a disseminated statement lay with the respondent. The District Court found that the impugned statements – namely the allegations that V.K. had performed an expert examination with a definite aim in mind and had distorted the facts in order to achieve that aim – amounted to an accusation of perjury, an offence under Article 307 of the Criminal Code, and an accusation that there had been serious breaches of the Criminal Procedure Code. In so far as relevant, the District Court’s judgment read as follows:
“In the court’s opinion, the analysis of the impugned statements reveals that they contain allegations that V.K. performed an expert examination with the intention of receiving a predetermined result, that is, he was biased and had a personal interest in the proceedings. The same statements affirm that, in breach of the provisions of the Criminal Procedure Code, V.K. did not withdraw from the case. Accordingly, the contested statements contain allegations of breaches of laws by V.K. ... and tarnish his honour, dignity and business reputation.
The respondents’ argument that the impugned statements were a permissible expression of opinion by a journalist cannot be accepted by the court ... for the following reasons. ...
Freedom of expression guaranteed by the Constitution of the Russian Federation may not be used as an instrument for an attack on the honour and dignity of other citizens.
Therefore, a journalist could not claim exemption from liability for defamation on the grounds that he or she was expressing an opinion if that opinion was damaging to the interests protected by the Constitution of the Russian Federation and the Civil Code of the Russian Federation, namely honour, dignity and business reputation.
The respondents’ argument – that the material from the criminal case file revealed many breaches of law which had taken place during the expert examination with the participation of V.K. – was not confirmed during the hearing. The documents from the criminal case file submitted by the respondents do not contain any direct reference to unlawful acts committed by V.K. during the expert examination. A civil court does not have competence to review judicial or other decisions taken in the framework of criminal proceedings. ...
The evidence submitted by the respondents does not prove the truthfulness of the disseminated statements about the claimant.”
22.  The District Court ordered the applicant company to pay V.K. 50,000 Russian roubles (RUB – approximately 1,350 euros[4] (EUR)) and the second applicant to pay him RUB 5,000 (approximately EUR 135). As regards court fees, the applicant company was ordered to pay RUB 9, and the second applicant was ordered to pay RUB 10. The District Court also ordered the applicant company to publish a retraction.
23.  The applicant company appealed, complaining in particular of a violation of its right to freedom of expression guaranteed by Article 10 of the Convention and Article 29 of the Russian Constitution. It argued that the article contained the journalist’s opinions and value judgments on a matter of public interest, and they had a sufficiently accurate and reliable factual basis and were not susceptible of proof.
24.  On 19 July 2005 the City Court upheld the judgment on appeal, endorsing the District Court’s reasoning. It did not mention Resolution no. 3 of the Plenary Supreme Court (see paragraph 31 below). In so far as relevant, the appeal judgment read as follows:
“The respondents have not proved that the disseminated statements corresponded to reality. ...
In the statement of appeal, the respondent [company] claims that the journalist expressed her opinion, which was based on the criminal case material, and that civil law does not hold a journalist liable for the expression of a subjective opinion. This argument is analogous to the one already assessed by the first-instance court, and the [appeals] panel endorses that assessment.
Moreover, the impugned statements contain statements of fact, not the journalist’s subjective opinion. ...”
25.  On 15 August 2005 the District Court issued writs of execution against the applicants in V.K.’s favour.
26.  On 23 March 2006 the applicant company transferred to the bailiffs’ bank account RUB 50,009 to be paid to V.K.
27.  It is not clear whether the second applicant paid the amount which the District Court ordered her to pay to V.K.