Thursday, 21 October 2010
ECHR Judgement In Russian 'Whistle Blower' Journalist Case
A violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
The case concerned the withdrawal from sale of copies of a municipally owned weekly newspaper at the request of the editor-in-chief on account of the politically sensitive content of an article.
The applicant, Kakhraman Saliyev, is a Russian national who was born in 1957 and lives in Magadan (Russia). As the president of a non-governmental organisation, he wrote an article in 2001 about the acquisition of shares in a local energy producing company, which was at the time a part of the State holding Edinye Energeticheskiye Systemy Rossii, by a group of Moscow-based firms.
He described the purchase as a crooked deal and alleged that a high-level official from Moscow, one of the leaders of the pro-government political party, was behind the transaction. The editor-in-chief of a municipally owned newspaper, Vecherniy Magadan, agreed to publish the article in its issue of 2 November 2001. While more than 2000 copies of the issue were sent to subscribers and libraries, a certain number of copies submitted to a distributing company were withdrawn from news-stands shortly after distribution and later destroyed. A few days later the editor-in-chief resigned from his post.
Mr Saliyev lodged a formal complaint with the regional prosecutor’s office, submitting that the withdrawal of the newspapers amounted to unlawful interference with freedom of the press, an offence under the Criminal Code.
After questioning the head of the distributing company and the editor-in-chief, the investigator in January 2003 decided not to open a criminal investigation. He found that there had been no interference with freedom of the press, as the decision to withdraw the copies had been taken by the editor-in-chief himself without any coercion and had been motivated by the need to avoid civil lawsuits which might have followed the publication of the article.
Mr Saliyev challenged the decision before the town court, testifying that the editor-in-chief had explained to him that the copies of the newspaper had been withdrawn by a decision of the distributing company. However, both the head of the distributing company and the editor-in-chief confirmed their earlier testimonies to the effect that the latter had taken the decision alone. The decision not to open a criminal case was eventually upheld by the regional court in May 2003.
Mr Saliyev also brought civil proceedings, seeking to have the withdrawn copies of the newspaper with his article reprinted and sold at news-stands. The courts eventually dismissed his action in August 2003, stating that the newspaper, as the owner of the copies, could freely dispose of them and that there had been no contract between Mr Saliyev and the newspaper obliging the latter to distribute the issue containing the article.
Complaints, procedure and composition of the Court
Relying on Article 10, Mr Saliyev complained that the newspaper copies with his article had been withdrawn for political reasons, amounting to political censorship.
The application was lodged with the European Court of Human Rights on 20 October 2003.
Decision of the Court
The Court noted that copies of the newspaper had been withdrawn and destroyed after the article had been accepted by the editorial board, and after it had been printed and made public. After publication, any decision limiting the circulation of Mr Saliyev’s article had to be regarded as an interference with his freedom of expression.
Further, the main reason for the withdrawal had been the content of the article. The Russian Government had conceded that the editor-in-chief had withdrawn the newspapers for fear of possible civil or administrative sanctions. The withdrawal therefore amounted to an interference with Mr Saliyev’s rights under Article 10.
From the evidence before it, the Court saw no reason to depart from the domestic courts’ findings that the withdrawal had been ordered by the newspaper’s editor-in-chief. He had been appointed and paid by the municipality, which, holding the newspaper’s assets, moreover had the right to shape its editorial policy to a certain extent.
It appeared that the editor-in-chief’s decision had been motivated by his own perception of the situation and the possible negative consequences of the article, without a state authority having expressed dissatisfaction with it.
Nevertheless, given the fact that he was required to ensure the loyalty of his newspaper to the municipality and its policy line, his decision could be characterised as an act of policy-driven censorship. The Court was not convinced by the Government’s argument that the municipality was not a State authority for the purpose of the Convention, given that under Russian law municipal authorities were treated on the same footing as federal or regional bodies for many purposes. The interference with Mr Saliyev’s rights could therefore be attributed to a State authority.
Domestic law entitled editors-in-chief to decide on questions relating to the distribution of a newspaper. The decision to withdraw the copies could therefore be considerd as lawful. The Court was also prepared to accept that the decision pursued the legitimate aim of protecting “the reputation or rights of others” for the purpose of Article 10, namely the State officials and managers of the local energy company targeted by the article.
As to the question whether the withdrawal had been “necessary in a democratic society”, the Court underlined that Mr Saliyev had reported on a matter relating to the management of public resources, lying at the core of the media’s responsibility and the right of the public to receive information.
The domestic courts had not addressed the question whether he had exceeded the limits of permissible criticism or analysed the content or the form of the article at all, but had simply treated Mr Saliyev’s complaint as a business matter.
The Court pointed out that the relationship between a journalist and an editor-in-chief is not only or always a business relationship and in Mr Saliyev’s case it was not such a relationship, as the newspaper was, according to its own charter, a municipal institution aiming to inform the public about local social, political and cultural issues.
The domestic courts had therefore failed to give a justification for the withdrawal from the standpoint of Article 10. The critical views expressed in Mr Saliyev’s article were moreover reasonably supported by facts which had never been challenged.
The Court unanimously concluded that there had been a violation of Article 10.
The Court did not make any award under Article 41 (just satisfaction) of the Convention, since Mr Saliyev had not submitted a claim.