January 06, 2011
Before its holiday break, the European Court of Human Rights released two judgments in defamation cases, Novaya Gazeta V Voronezhe v. Russia and Sofranschi v. Moldova. Both cases concern allegations of abuse and irregularities. While both judgments contain good elements, in my opinion they also reveal faulty reasoning on the part of the Court. Most interestingly, the judgments contradict each other on some crucial points. Thus one judgment provides alternatives to the shortcomings of the other.
Novaya Gazeta V Voronezhe v. Russia concerns an application by the editorial board of a newspaper, which had published an article regarding abuses and financial irregularities allegedly committed by the mayor of Novovoronezh, municipal officials and a local businessman who did renovation work for State funded institutions. The article based its information on a (non-certified) copy of a town administration audit report. Following defamation proceedings, the editorial board was ordered to pay compensation to the plaintiffs and to publish an apology.
The circumstances of Sofranschi v. Moldova are rather different, but partly overlap when it comes to the content of the statements. In this case, the applicant is a private individual – a member of the electoral staff of one of the candidates for municipal elections – who had written a letter to the President of Moldova, the Speaker of Parliament and the local Prosecutor’s Office, which was critical of V.P., a candidate for the position of mayor. In his letter he complained about irregular conduct by V. P. and his lack of education. Defamation proceedings were initiated against the applicant and the domestic courts ordered him to pay compensation.
The Court found a violation of article 10 in both cases.
The first judgment contains – as far as I am aware – a novelty in that it applies the idea that “private individuals lay themselves open to scrutiny when they enter the public arena” outside the context of public figures qua celebrities. Since “the issue of the proper use of public funds is undoubtedly a matter for open public discussion”, the Court holds that also the local businessman ought to have shown a greater degree of tolerance to criticism in a public debate than a private individual.
However, the Court errs in the same judgment when it considers that “the impugned statements in the present case reflected comments on matters of public interest and are thus to be regarded as value judgments rather than statements of fact.” I do not agree with that assessment. Allegations of abuses and irregularities, even if they are formulated in the form of comments on a matter of public interest, are closer to statements of fact than to value judgments. This becomes clear when one takes a look at the following extracts from the publication: “… For a long time the Novovoronezh town administration failed to transfer payments to the compulsory medical insurance fund. In the mayor’s opinion, these transfers were not mandatory, but a commercial court decided otherwise.”; “And what about the honest Mayor S.? He does not know, perhaps, about the tricks of his deputy? On the contrary. He does know and he even personally signs payment orders for the transfer of money to the State enterprise ‘Voronezh regional clinical psychiatric hospital’…”; “… During the audit an estimate of the repair work actually performed in the town stadium was made up. The cost of the actual work done amounted to nearly 500,000 roubles. So, Mr S. and Mr F., where have the remaining 1,300,000 roubles gone? …”
Interestingly enough, the second judgment provides an alternative approach in holding that “[t]he applicant’s letter contained both factual allegations of irregular conduct on the part of V.P. and value judgments about his unethical behaviour.” Extracts from the letter that are deemed factual allegations by the Court read: “[h]e has no education and only attended primary school… He obtained false diplomas and cannot even read properly… He illegally possesses shares in the collective farm…”. These are similar to the statements – to the extent that they contain factual allegations – quoted above.
So why did the Section ruling on the first case not come to a similar conclusion?
I consider one possible answer to lie in the fragmented reasoning the Court uses in defamation cases. The Court often starts its reasoning, and it does so as well in Novaya Gazeta V Voronezhe v. Russia, by dividing the case up into different elements, which it then examines in turn to determine the outcome of the case. These elements are, among others, the status of the applicant, the status of the plaintiff, the subject matter and the nature of the statements. Presumably, the Court uses this rather strict division – the Court dedicates separate paragraphs to the different elements – to create some clarity and line in its difficult defamation case law. However, the downside of the fragmentation is that the interconnection between all elements may be lost. There is thus a danger that the Court will start treating the different elements as conditions to be met before it can find a (no) violation. As if they were elements of a checklist it has to complete. I believe this process was at work in Novaya Gazeta V Voronezhe v. Russia. Generally, in Russian defamation cases the problem lies with the – until recently – absence of a distinction between value judgments and statements of fact in Russian legislation. Previous to recent changes in the law, all statements required proof. In many defamation judgments the Court thus found a violation simply because the applicant was required to do the impossible: deliver proof of a value judgment. But of course in order to find a violation on this ground, the Court has to establish that the statements were value judgments. Because if they were statements of fact, the problem in the old Russian legislation is no longer a problem, the standard of proof applied by the domestic courts actually having been the correct one. This may explain why the Court was so eager to declare the statements to be value judgments in Novaya Gazeta V Voronezhe v. Russia. However, if the Court would have not been distracted by a step-by-step reasoning, it might have easier identified the connection with later paragraphs of its own judgment. Further on in the judgment the Court states that it is “struck by the fact that neither the trial nor the appeal courts tried to assess whether the information presented in the article had any factual basis, or even mentioned that Mr E.P. had referred to two official documents to support his allegations.” Moreover, while the applicant had relied on a non-certified copy of an audit report, the domestic courts refused to request the original audit report as evidence. The Court therefore holds that “in requiring the applicant to prove the truth of the statements made in the article while at the same time depriving it of an effective opportunity to adduce evidence to support those statements and thereby show that they constituted fair comment, the domestic courts overstepped their margin of appreciation.” These latter arguments clearly suffice to find a violation, even if the statements are – correctly – classified as statements of fact.
While the second judgment does a better job at determining the nature of the statements, it also seems to commit the fault of dividing the judgment into little consecutive steps, rather than looking at the big picture. Ironically, the problem I have with this judgment lies in the standard of proof the Court connects to the factual allegations by the applicant, or rather the lack of explanation for the introduction of this particular standard. Most notably, the Court holds in Sofranschi v. Moldova that “it appears that the applicant’s factual allegations rested on what he believed to have been sound grounds.” The factual basis test is here clearly watered down. Since it concerns factual allegations, one can in principle expect the standard of proof to be stricter than “believing it to be true”. However, the Court does not provide an explanation as to why the lesser standard applies. Also here, the Court seems to resort to less than satisfactory reasoning because of the ‘requirements’ of its fictive checklist: if it would not apply a less strict standard of proof test it would not be able to check the applicant-acted-in-good-faith box, because the applicant actually did not have sufficient elements to deliver proof of his allegations (they rested largely on hearsay). It appears as though the Court was preoccupied with finding arguments why the domestic courts had imposed too strict standards of proof in order to be able to find a violation, which led them to invent the “believing it to be sound grounds” test. The phrase “putting the cart before the horse” springs to mind. However, also in this case, it was not necessary to take this route. A quick glance down to the final paragraphs of the Court’s reasoning shows that the Court emphasises the “limited impact of the impugned statements, due to the fact that the applicant addressed his complaint by way of private correspondence to State officials and did not make it public to the outside world.” While I would personally prefer a comparative reference in the sense of “the relatively limited impact of the statements written in private correspondence, as compared to factual allegations made in newspaper articles”, this element could easily be connected to the previous one to demonstrate exactly why the lesser standard of proof applies. The applicant is a private individual, complaining in a private letter about certain abuses he suspects a candidate for local elections to be guilty of. Obviously, he should not be submitted to the standards of proof applicable to a newspaper reporting on the same issues to the public, since he does not have the resources the press has, nor is he under the same duties and responsibilities the press is under when imparting information to the public. This explains why the lesser standard of proof applies. Which in turn explains why the domestic courts imposed too strict standards of proof across the board (see the footnote). Which explains the finding of a violation.
What the two defamation judgments teach us is that, even if the outcome is still reasonable, fragmented reasoning may lead to less satisfactory argumentation. This is especially dangerous in areas such as defamation that see a large number of judgments and where an overburdened Court appears to increasingly resort to cut and paste style reasoning to save time. However, such an approach does not fit the complexity of the area and the vast differences between cases. Building up a reasoning on the basis of different elements, which are first identified and then discussed in turn, definitely leads to improved coherency and readability of the defamation case law. But it cannot come at the price of losing sight of the case and the reasoning as a whole. If a broad view is kept, unnecessary oversights and contradictions like the ones present in the discussed cases can hopefully be avoided.
 In further paragraphs, the Court explains specifically why the domestic courts imposed too strict standards of proof for certain statements. However, only one of the explicitly examined statements concerns the factual allegations quoted here (the allegation of possession of a false diploma). In fact, the Court limits itself to the value judgments and two factual allegation for which the domestic courts did not examine/allow evidence. The lesser standard of proof developed by the Court is the only element left that would explain why the domestic courts also imposed too strict standards of proof for the other factual allegations mentioned above. However, the Court does not make this explicit and does not treat these allegations separately.