28 February 2012
On 28 February 2012 the Savelovsky Moscow District Court announced its findings on a claim brought by Vasily Yakemenko the Head of the Federal Agency for Youth Affairs against Marat Gelman a high profile gallery owner and art collector and the online news agency Gazeta.Ru.
The court ordered Gelman to publish a retraction of statements made on Twitter and Live Journal that Yakemenko had ordered the assault and battery of Kommersant journalist Oleg Kashin. In addition, the court ordered the gallery owner to pay Yakemenko 100,000 roubles. Gazeta.Ru was also ordered to publish a retraction and pay him 5,000 roubles.
Commenting on the court's decision to Damir Gainutdinov a legal analyst at the Agora Human Rights Association, Gelman's legal representative said, "During the case four different experts declared that the statements made had only been Gelman's personal opinion, and should not have been prosecuted under the law or resulted in such a verdict. It turns out that Kashin can express an opinion regarding the links between his attackers and the head of Rosmolodezh [the Federal Agency for Youth Affairs] but Gelman cannot. It will be interesting to see what the Moscow City court will make of such a blatant disagreement between its subordinate judges. In addition, the question of whether Yakemenko ordered the attempted murder of Kashin or not is a matter for the investigator in charge of the inquiry and is not in the Savelovsky Court's remit at all."
The Savelovsky Court decision will be appealed at the Moscow City Court in the near future.
Earlier, Professor Anatoly Baranov, Doctor of Philology and Head of the Department for Experimental Lexicography at the Vinogradov Institute of Russian Language at the Russian Academy of Sciences had concluded that, "the statements under dispute do not contain any assertions that Yakemenko had committed any dishonest or offensive acts, had behaved in an improper or unethical manner or had violated any laws or moral norms in either his personal or public life or in his professional conduct".
"The disputed statements, containing negative information about Yakemenko, do not contain language (words and phrases) of an offensive nature or of an emotionally offensive tenor," wrote Professor Baranov in the findings of his investigation.
Professor Baranov categorised Marat Gelman's statements into: opinions as an art collector, speculations combined with opinion, and statements of opinion.
Nevertheless, Vasily Yakemenko claimed that a statement published by Marat Gelman on Twitter and Live Journal regarding his belief that Yakemenko had ordered the attempted murder of Kommersant journalist Oleg Kashin to be untrue and a slur on his honour, dignity and business reputation. The statement read: "I will tell you my version [of events] - and this is that Vasya Yakemenko was the instigator".
Legal expert Damir Gainutdinov notes that the European Court and the Russian Supreme Court hold the same position on these sorts of cases - an assertion of fact can require proof but under no circumstances is the same required of a personal opinion:
- The statement that is disputed by Yakemenko is an expression of Gelman's personally evaluated opinion regarding an investigation into a serious crime. The claimant is demanding a retraction. However, a retraction of the statement, 'I believe' will have to sound like, 'I do not believe', in other words the defendant will be forced to refute his own opinions and convictions, which is directly and expressly forbidden by the Russian Constitution.
Another argument noted by Damir Gainutdinov that suggests the groundlessness of Yakemenko's claim is the fact that Gelman was stating his opinion on an issue of significant public interest. The European Court has repeatedly underlined that, "the probability of restricting political statements or debates on issues of public interest is not great."
Gainutdinov stressed that the European Convention on Human Rights and Fundamental Freedoms defends not only the contents of a statement but also the manner that it is made. A posting on Twitter, which cannot exceed 140 symbols and likewise a blog are a very particular form of communication and expression of one's opinion. A post on a blog or on Twitter presupposes an element of informality. In practice, It is a form of communication that could possibly not contain a detailed substantiation of a position, complex argumentation and references to sources.
Our readers will recall that on 21 June the Khamovnichesky Moscow District Court overturned a similar case brought by Vasily Yakemenko against Oleg Kashin, the journalist Aleksandr Morozov and the Novye Izvestiya Newspaper.