CASE OF KHARLAMOV v. RUSSIA

1. The case originated in an application (no. 27447/07) 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 a Russian national, Mr Vladimir Fedorovich Kharlamov (“the applicant”), on 7 May 2007.
2. The applicant was represented before the Court by Mr V. Suchkov, a lawyer practising in Orel. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged a violation of his right to freedom of expression.
4. On 12 September 2012 the application was communicated to the Government.
5. The applicant was born in 1948 and lives in Orel. At the time of the events the applicant, a Ph.D. in Physics and Mathematics, was a tenured professor in the physics department of the Orel State Technical University.
I. THE CIRCUMSTANCES OF THE CASE
6. By Order no. 383 of 14 December 2006, the president ( ректор ) of the Orel State Technical University convened a university-wide conference for the election of the university ’ s academic senate ( ученый совет ), its standing governing body. The date of the conference was fixed for 26 December 2006. According to the Regulation on the Composition of the Academic Senate of the Orel University, candidates to the senate were to be nominated at staff meetings in structural entities by open majority vote (section 3 of the Regulation of 12 December 2006).
7. Unhappy about the fact that neither he nor his colleagues in the physics department had been consulted or informed about the nomination and discussion of candidates to the academic senate, the applicant took the floor at the above public conference and spoke as follows:
“ ... the elected academic senate may not be considered a legitimate body and its decisions likewise cannot be considered legitimate. All of them can be challenged in courts. The problem is that the staff or departments did not know anything about the candidates to the academic senate or of their academic achievements; no one nominated those candidates. This is some kind of a private party that is going on, some people have gathered and elected themselves. My rights have been violated: I, as a member of the faculty, have been excluded from the procedure which is of great importance both for me and for the university as a whole – the election of the academic senate. My rights have been breached, and I will complain to courts about the breaches of my rights. The rights of ordinary university employees, ordinary lecturers, have been breached, too: they were removed from the election to the academic senate, this is discrimination. Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.”
8. The Orel University sued the applicant in defamation, claiming that his speech had undermined the professional reputation of the university and of its academic senate. The statement of claim was signed by the university president.
9. The Sovetskiy District Court of Orel reviewed the university statutes and regulations on the procedure for the election of the academic senate and took oral evidence from witnesses. Four witnesses testified that the physics department had not held a meeting for the election of delegates to the conference or nomination of candidates to the senate because the delegates and candidates had been elected and nominated at the meeting between the heads of departments. The staff had been informed about the meeting several days in advance and anyone could attend it.
10. By judgment of 27 February 2007, the District Court found the applicant liable for defamation of the Orel University and its academic senate. According to the judgment, the applicant “publicly accused [them] of a violation of applicable laws [and] commission of a dishonest act”. It also held as follows:
“The court cannot agree with the respondent party ’ s argument that the statements [he had] disseminated at the conference were an expression of an opinion. The statements were made in the affirmative form which is apparent from the minutes of the conference of 26 December 2006, the audio recording of the conference, and testimony by witnesses. The witnesses K. and Sh. who had attended the conference on 26 December 2006 explained that they understood the statements as an affirmation which produced a negative impression on them ...
Every legal entity has the right to require that a public appraisal of its activities reflect the real state of affairs. Any negative appraisal of the activities of a legal entity affects its reputation and undermines it. The activity of a legal entity can only be potentially successful if its business reputation in the eyes of other organisations and ordinary citizens is maintained at a certain level, especially in a market economy.”
11. The District Court awarded the Orel University 20,000 Russian roubles (RUB) in damages and RUB 2,000 in court fees and directed that the applicant read the refutation at the following university conference.
12. The applicant filed an appeal, relying in particular on Article 10 of the Convention. He also pointed out that the award in respect of damages exceeded his monthly salary.
13. On 11 April 2007 the Orel Regional Court upheld the District Court ’ s judgment on the merits but partly amended it. Firstly, it considered that the sentences “All of them can be challenged in courts ... Any discrimination is a form of war; you have declared war to the people, and sooner or later you will get the results of this war in some way or another, in your own families.” did not contain any statements about the plaintiff and could not therefore be damaging for its reputation. Secondly, it noted that the sentence “no one nominated those candidates [in the departments]” was actually true because candidates had been nominated at the meetings of department heads. Thirdly, the Regional Court considered it appropriate that the operative part of the District Court ’ s judgment be read out at the following conference by the president rather than by the applicant. Finally, it offered a more nuanced characterisation of the disputed phrases as a statement of fact:
“Mr Kharlamov ’ s speech contained a statement of fact: the elected academic senate may not be considered a legitimate body and all of its decisions are likewise illegitimate, in other words, the academic senate was unlawfully elected and its decisions are unlawful. This is a verifiable statement. Accordingly, this information is not a subjective opinion of the defendant but a factual allegation.”
A. Constitution of the Russian Federation
14. Article 29 guarantees freedom of thought and expression, together with freedom of the mass media.
B. Civil Code of the Russian Federation
15. Article 152 provides that an individual may apply to a court with a request for the rectification of statements ( svedeniya ) that are damaging to his or her honour, dignity or professional reputation if the person who disseminated such statements does not prove their truthfulness. The aggrieved person may also claim compensation for losses and non ‑ pecuniary damage sustained as a result of the dissemination of such statements.
C. Resolution of the Plenary Supreme Court of the Russian Federation no. 3 of 24 February 2005
16. The Resolution requires the courts hearing defamation claims to distinguish between the statements of facts which can be checked for veracity and evaluative judgments, opinions and convictions which are not actionable under Article 152 of the Civil Code, being an expression of the defendant ’ s subjective opinion and views that cannot be checked for truthfulness (paragraph 15 above ).
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
17. The applicant complained under Article 10 of the Convention about a violation of his right to freedom of expression in connection with the defamation proceedings brought against him by the Orel State University. Article 10 reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
18. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
19. The Government accepted that the domestic judgments constituted an interference with the applicant ’ s right to freedom of expression. That interference had a lawful basis in Article 152 of the Civil Code and pursued a legitimate aim of the protection of the reputation of others.
20. According to the Government, the District Court drew a clear distinction between value judgments and statements of fact. Thus, it correctly considered that the applicant ’ s statement about “illegitimacy” of the academic senate was a statement of fact as it amounted to an assertion that the elected academic body had been composed in breach of the applicable regulations. They further insisted that the academic senate elections had been run in full compliance with the internal regulations of the University and that the applicant had no factual basis to make the impugned statement.
21. The applicant submitted that the interference was unlawful as his statement did not fall within the scope of Article 152 of the Civil Code (see paragraph 15 above). He argued that his speech at the conference of 26 December 2006 was an expression of personal opinion rather than “ dissemination of statements ”, as envisaged by this provision of the Civil Code.
22. He further argued that the impugned statement was merely an expression of his personal opinion based on facts known to him concerning designation of candidates to the academic senate elections. When deciding on the defamation claim, the District Court failed to distinguish between a statement of fact and a value judgment and disregarded the testimonies of four witnesses called by the applicant (see paragraph 9 above ).
23. It is common ground between the parties that the District Court ’ s judgment in the defamation proceedings constituted an interference with the applicant ’ s right to freedom of expression guaranteed by Article 10 § 1.
24. The Government submitted that the interference had a lawful basis; the applicant disagreed. The Court observes that the domestic courts relied on Article 152 of the Civil Code, which allowed the aggrieved party to seek the judicial protection of its reputation and claim compensation in respect of non-pecuniary damages, and the Plenary Supreme Court ’ s Resolution, which gave an authoritative guidance to the courts hearing defamation claims. The Court therefore finds that the interference was in accordance with law, within the meaning of Article 10 § 2 of the Convention.
25. Turning to the question of whether the interference pursued a legitimate aim, the Court reiterates that a measure proscribing statements criticising the acts or omissions of an elected body can be justified with reference to “the protection of the rights or reputations of others” only in exceptional circumstances (see Lombardo and Others v. Malta, no. 7333/06, § 50, 24 April 2007 ). In the instant case, the Court considers that the issue will be more appropriately dealt with in the analysis of the proportionality of the interference.
26. The test of necessity requires the Court to determine whether the interference corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient (see, among many other authorities, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007 ‑ IV). In carrying out its supervisory role the Court ’ s task is not to take the place of the national courts, but rather to review, in the light of the case as a whole, whether the decisions they have taken pursuant to their margin of appreciation are compatible with the provisions of the Convention relied on (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 105, ECHR 2012, and Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).
27. In the present case the applicant expressed his views at an academic assembly open to all University staff. He was found civilly liable for his speech, and therefore the impugned interference must be assessed in the context of professional environment. The Court has previously observed that employees owe to their employer a duty of loyalty, reserve and discretion (see, for instance, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Heinisch v. Germany, no. 28274/ 08, § 64, ECHR 2011 (extracts) ), and that in striking a fair balance the limits of the right to freedom of expression and the reciprocal rights and obligations specific to the professional environment must be taken into account (see Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 74, ECHR 2011). At the same time the Court does not lose sight of the academic context of the debate. The principle of open discussion of issues of professional interest must thus be construed as an element of a broader concept of academic autonomy which encompasses the academics ’ freedom to express their opinion about the institution or system in which they work ( see Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 40, 27 May 2014, and Sorguç v. Turkey, no. 17089/03, § 35, 23 June 2009 ). Therefore the Court must look at the interference in the light of the case as a whole, including the nature of the remarks held against the applicant and the professional and academic context in which he made them (see Palomo Sánchez and Others, cited above, § 70, and Lingens v. Austria, 8 July 1986, § 40, Series A no. 103 ).
28. The Court first observes that the applicant ’ s speech brought to light a matter of professional concern, namely opacity of the academic senate election. The composition of the ruling body of the University and the procedure for designation of candidates to the election are of central importance for the University staff, and discussion around these issues at a University-wide conference forms an integral part of the organisation of the academic life and self-governance. The debate was therefore not a purely private one. On the contrary, it took place in public and the issue raised by the applicant concerned a matter of general interest, which the applicant was entitled to bring to the attention of his colleagues (see Palomo Sánchez and Others, cited above, § 72, Rubins v. Latvia, no. 79040/12, § 84-85, 13 January 2015, and Boldea v. Romania, no. 19997/02, § 57, 15 February 2007 ).
29. According to the Court ’ s constant case-law, there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest and very strong reasons are required for justifying such restrictions (see Krasulya v. Russia, no. 12365/03, § 38, 22 February 2007, with further references). In the present case there is no evidence that the domestic courts performed a balancing exercise between the need to protect the University ’ s reputation and the applicant ’ s right to impart information on issues of general interest concerning the organization of the academic life. They merely confined their analysis to the discussion of the damage to the plaintiff ’ s reputation (see paragraph 10 above) without giving any due consideration to the Convention standards described above. Neither did the domestic courts consider that the “dignity” of an institution cannot be equated to that of human beings. The Court considers that the protection of the University ’ s authority is a mere institutional interest of the University, that is, a consideration not necessarily of the same strength as “the protection of the reputation or rights of others” within the meaning of Article 10 § 2 (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). The Court therefore finds that the domestic courts did not take into account specific features of academic relations and failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of reputation (see Dyundin v. Russia, no. 37406/03, § 33, 14 October 2008 ).
30. Turning to the content of the applicant ’ s speech, the Court reiterates that a distinction must be drawn between the statements of fact, amenable to proof, and value judgments. The existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible to proof (see De Haes and Gijsels v. Belgium, 24 February 1997, § 42, Reports of Judgments and Decisions 1997 ‑ I, and Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004 ‑ XI ).
31. In the present case the domestic courts found that the applicant ’ s statement was untrue and that he had failed to discharge the burden of proof resting on him. The courts focused their attention on the applicant ’ s describing the elected senate as “illegitimate” and found, on the strength of the available evidence, that the academic senate elections had been run in full compliance with the applicable regulations (see paragraph 13 above). The Court observes at the outset that the thrust of the applicant ’ s speech was his severe discontent with the manner in which the academic senate had been elected. Seeking to attract his colleagues ’ attention to the shortcomings in the election procedure, the applicant argued that the heads of department had failed to initiate any public discussion, and claimed that the election had been “in breach of the ordinary professors ’ rights” because the candidates had been appointed directly by the heads of departments. The applicant has thus voiced his personal comment on a matter of public interest for the University staff while the domestic courts considered the applicant ’ s subjective appraisal of the election procedure to be a factual accusation (see, for similar reasoning, Pinto Pinheiro Marques v. Portugal, no. 26671/09, § 43, 2 2 January 2015). In his defence, the applicant relied on statements of four fellow professors heard by the District Court. They corroborated the applicant ’ s claim that no meetings had been held in the University departments and that no candidates had been nominated by open majority vote (see paragraph 6 above). The Court considers that by calling these four witnesses to testify before the District Court the applicant succeeded in showing that the impugned value judgment had a sufficient factual grounding, and that the situation described by the witnesses, namely the absence of an open discussion of candidates for the academic senate election, could have prompted him to speak the way he did. Against this background, the Court finds irrelevant the Government ’ s argument about formal compliance of the election procedure with the University internal regulations. The applicant based his opinion about “illegitimacy” of the academic senate on his own assessment of facts which might be accurate or not (see Brosa v. Germany, no. 5709/09, § 45, 17 April 2014 ) and discharged the obligation to back up his statement with evidence.
32. The Court notes that the applicant had recourse to a certain degree of hyperbole in his address. At the same time, employees, while engaging in a debate of public interest, are entitled to have recourse to exaggerations as long as they do not overstep the limits of admissible criticism ( see, mutatis mutandis, Vellutini and Michel v. France, no. 32820/09, § 39, 6 October 2011 ). The Court considers that the applicant did not resort to offensive and intemperate language and did not go beyond the generally acceptable degree of exaggeration.
33. In conclusion, the Court finds that the domestic courts failed to strike a fair balance between the relevant interests and to establish a “ pressing social need ” for putting the protection of the plaintiff ’ s reputation above the applicant ’ s right to freedom of expression. Therefore, the Court considers that the domestic courts overstepped the narrow margin of appreciation afforded to them in the matters of debate of public interest and that the interference was not “necessary in a democratic society”.
34. There has therefore been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
35. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
36. The applicant claimed 30,000 euros ( EUR ) in respect of non-pecuniary damage.
37. The Government submitted that that the claim was excessive and uncorroborated with any evidence of the applicant ’ s distress.
38. In the Court ’ s view, the applicant suffered non-pecuniary damage as a result of the domestic courts ’ judgments which were incompatible with the Convention requirements. The damage cannot be sufficiently compensated by a finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,500, plus any tax that may be chargeable on that amount.
39. The applicant did not claim any costs or expenses. Accordingly, there is no need to make an award under this head.
40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;