Постановление Европейского суда по правам человека от 08.10.2009 "Дело "Порубова (Porubova) против Российской Федерации" [рус., англ.]

d dissemination of information about individuals' private lives, an offence specifically contemplated by Article 137 of the Russian Criminal Code, but rather for criminal libel and criminal insult. The offence of criminal libel put the burden on the prosecution, rather than on the defendant, to show that the impugned statement was both false and damaging to the victim's reputation. As regards the first element of proof, the Court is struck by the fact that the domestic authorities, the prosecution and the courts alike never stated explicitly whether the allegations of Mr V.'s and Mr K.'s same-sex relationship had been true or false and made no findings in that respect. Not only did they refuse the applicant's request for an examination of the victims with a view to establishing their sexual orientation, but they did not even put any questions about that delicate issue to the victims or any possible witnesses. The judgments of the domestic courts were all but silent on whether Mr V. and Mr K. were or were not homosexuals and whether they had or had not had an affair in Moscow. Moreover, the courts did not examine whether the applicant had in fact been aware of the untruthfulness of the allegation in question, and they refused to take cognisance of the material which the applicant sought to adduce in order to show that she had had sufficient reasons to believe that Mr V. and Mr K. had had an affair.
48. Furthermore, as regards the charge of criminal insult, the Court notes that the condition sine qua non for legal characterisation of a certain statement as constituting the offence of criminal insult under the Russian Criminal Code was the presence of obscene words. However, no such words were identified either in the list of charges compiled by the prosecution or in the judgments of the domestic courts. The expert's report commissioned by the investigation did not find any such obscenities in the text either. The expert solely stated that "tolerance... [was] uncharacteristic of the Russian mentality" and that the Russian language contained a significant number of pejorative and rude terms for describing homosexuals. Be that as it may, the Court is unable to discern any such pejorative or rude terms in the text of the original article. Even the word "homosexual" - which may appear to be the most objectionable term in the article - was employed in a rhetorical question without reference to either Mr V. or Mr K. The Court therefore distinguishes the present case from those in which an applicant's criminal conviction for the use of strong or even obscene language to describe other people's lives led it to find no violation of Article 10 (see, for example, Tammer v. Estonia, No. 41205/98, §§ 64 - 71, ECHR 2001-I, and Constantinescu v. Romania, No. 28871/95, §§ 70 - 78, ECHR 2000-VIII).
49. In the light of the above considerations, the Court finds that the domestic courts failed in their duty to supply "relevant and sufficient" reasons for finding the applicant guilty of either criminal libel or insult. Finally, in assessing the proportionality of the interference, the nature and severity of the penalty imposed are also factors to be taken into account (see {Skalka} v. Poland, No. 43425/98, § 38, 27 May 2003). In this respect, the Court notes that the applicant was convicted and sentenced to one and a half year's correctional work with retention of a portion of her wages. The sanction was undoubtedly severe, especially considering that lighter alternatives, such as a fine, were available under domestic law. The fact that the applicant was dispensed from serving her sentence does not alter that conclusion, seeing that the dispensation in question was merely the product of a fortunate coincidence in the form of an amnesty act which happened to apply to all minors and women accused of a wide variety of criminal offences at the relevant period of time, and which had not been



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