Full case report
Zakharov v Russia
Reference Application No. 14881/03
Court European Court of Human Rights
Judge Rozakis (President), Vajic, Kovler, Steiner, Hajiyev, Spielmann, Jebens (Judges), Nielsen (Section Registrar)
Date of Judgment 5 Oct 2006
Human Rights – Defamation – Article 10 ECHR – Criticism of public officials – Private correspondence – Statements of fact – Value judgments
Z sent a letter to the Deputy Governor of the Moscow region alleging that A, the head of a town council, had actively contributed to the usurpation of a plot of communal land and had engaged in “outrageous conduct” and “anti-social behaviour”. A obtained a copy of the letter and successfully brought an action for refutation of information damaging to her honour and dignity and compensation for non-pecuniary damage. The relevant Civil Code at the time made no distinction between statements of fact and value judgments referring only to “statements”, and Z was accordingly required to prove the truth of all of the allegations contained in the letter. On appeal the Regional Court partially upheld the judgment based on the failure of Z to prove the truth of the expressions used to describe A’s behaviour.
Whether Z’s right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights had been infringed.
Finding a violation of Article 10, the court observed that the extent to which protection of public servants from offensive, abusive and defamatory attacks was necessary depended on the particular circumstances of the case. The level of protection offered to law-enforcement officials should not be extended to all persons who are employed by the State. The fact that the allegations were contained in private correspondence was crucial to the assessment of proportionality. The domestic court had failed to identify any pressing social need for putting the protection of the civil servant’s personality rights above Z’s right to impart information and the general interest in the examination of irregular conduct of civil servants. The letter as a whole did not go beyond the limit of acceptable criticism. The burden of proving the truthfulness of value judgments representing Z’s subjective appraisal of A’s behaviour was impossible to satisfy and was an infringement of freedom of opinion itself.
As well as reiterating the distinction between statements of fact and value judgments, this case highlights the fact sensitive approach that should be adopted when considering whether there is a “pressing social need” that justifies the interference with the Article 10 right: the level of protection from criticism afforded to state officials varies according to the precise nature of their public duties. Interference with the right to freedom of expression is less likely to be proportionate where the criticism is contained in private correspondence as opposed to publication in the media.
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