Постановление Европейского суда по правам человека от 22.12.2009 «Дело Макаренко (Makarenko) против России» [англ.]

Court, and then to the Smolensk Regional Court. He was present at the hearings before both appellate courts and was represented by several lawyers.
139. Under Chapter 44 of the new CCrP it would have been open to the applicant to apply to have new evidence put before the District Court (see paragraph 83 above). He could have made use of this right if he had considered that there were matters relevant to his conviction which were not taken into account by the Justice of the Peace because of the circumstances of his trial. However, there is no indication in the case file that he requested the admission of new evidence or made any submission to suggest that the evidence of his committing libel was unreliable or that if he had been present and/or represented at the trial any innocent explanation could have been brought forward for his having made statements about Mr M. or casting doubt on the trial court's interpretation of his statements as false and defamatory.
140. The Court therefore considers that, given the District Court's power to hear fresh evidence, it would have been possible for the applicant to seek a fresh determination of his conviction if there had been any evidence at his disposal to challenge it (see Jones, cited above). Against this background, the Court finds that the proceedings taken as a whole were fair.
141. It follows that there has been no violation of Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention.

V. Alleged violation of Article 10 of the Convention

142. The applicant complained that his conviction of libel constituted an unjustifiable and disproportionate restriction of his right to freedom of expression as provided in Article 10 of the Convention, which reads, insofar as relevant, 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 and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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... for the protection of the reputation or rights of others..."

A. Submissions by the parties

143. The Government submitted that the applicant had deliberately disseminated false information about Mr M., accusing him of attempted murder, a particularly serious offence. Furthermore, according to the Government, during a press conference on 28 May 2002 the applicant had confirmed that that information had been false. The applicant had been convicted of libel in compliance with Article 129 of the Russian Criminal Code, which prescribed a maximum penalty of three years' imprisonment.
144. The applicant submitted that he had made public statements about Mr M., accusing him of attempted murder, as he had had every reason to believe that Mr M. had taken part in the preparation of that criminal offence. Mr M. had run against the applicant in the elections for the Smolensk Regional Governor. Mr M. had threatened the applicant's life in response to the latter's public statements concerning Mr M.'s participation in an organised criminal group. Furthermore, the applicant submitted that he had expressed a personal opinion about Mr M.'s part in the attempted murder and therefore should not be expected to have verified whether his statement was true or false. In conclusion, the applicant, accepting that the interference with his freedom of expression pursued the "legitimate aim" of protecting the reputation and rights of Mr M., stressed that his statements had been a "va



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