Постановление Европейского суда по правам человека от 21.10.2010 «Дело Салиев (Saliyev) против России» [англ.]

c courts have taken pursuant to their power of appreciation (see Fressoz and Roire v. France [GC], No. 29183/95, § 45, ECHR 1999-I). However, in the specific case at hand the domestic courts did not analyse the content or the form of the article at all. In the eyes of the domestic courts the withdrawal had been ordered by the owner of the product (the newspaper) who had no contractual obligation {vis-a-vis} its producer (the author, that is, the applicant) to continue the sale. In other words, they treated the situation as just another purely business case, possibly coming within the ambit of Article 1 of Protocol No. 1 to the Convention, but not of Article 10 thereof.
76. The Court points out that the relationship between a journalist and an editor-in-chief (or publisher, producer, director of programmes, and so on) is not only or always a business relationship. In the present case at least it was not so, since Vecherniy Magadan was publicly owned and was created not as a profit-making business but as a public utility institution used as a forum for informing the population about the "social, political and cultural life" of the town (see paragraph 28 above). Furthermore, the Court has established that the copies of the newspaper were withdrawn because of the viewpoint expressed in the applicant's article. However, the domestic courts did not consider that the rights of the author of the article required any special protection under Article 10 of the Convention. Basing their findings on the mistaken assumption that the case was basically about the right of the owner to freely dispose of his property, they failed to examine the reasons for the withdrawal of the copies and to balance the applicant's freedom of expression under Article 10 of the Convention against any other interests that may have been at stake (for instance, the reputation of the person targeted by the article). Accordingly, the decision-making process in this case was deficient from the standpoint of Article 10 of the Convention. It is unclear whether this deficiency should be attributed to a lack of diligence on the part of the domestic courts or to the existing legislative framework, which treats such situations as simple "business situations".
77. In sum, the decisions of the domestic courts did not contain any justification for the withdrawal from the standpoint of Article 10 of the Convention. The Court observes that, to all appearances, the applicant's article concerned an important "matter of public interest". The truth of the facts related therein has never been challenged. As to the critical views expressed in the article, they were reasonably supported by the facts (see Jerusalem v. Austria, No. 26958/95, § 43, ECHR 2001-II) and were expressed in an acceptable form (see the Court's case-law on the "degree of exaggeration, or even provocation" permissible in political journalism, for example in Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A No. 313, p. 19, § 38; see, by contrast, the cases of Tammer v. Estonia, No. 41205/98, § 67, ECHR 2001-I, and Constantinescu v. Romania, No. 28871/95, § 74, ECHR 2000-VIII).
78. In such circumstances the Court concludes that the withdrawal of the newspapers containing the applicant's article was not necessary and contrary to Article 10 of the Convention. Accordingly, there has been a violation of that provision.

II. Application of Article 41 of the Convention

79. 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."
80. The Court points out that under Rule 60 of the Rules of Court any claim for just satisfaction must

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