5 May 2010
With the death of Vera V. Trifonova, the world has again turned its attention to the Motherland’s legal system. For the most part, the current frenzy has focused on the fatal shortcomings of Russia’s pre-trial detention practices in white-collar criminal cases. Without going into the details of the stories surrounding Trifonova, Sergey Magnitsky, or Bill Browder, let’s just say that people have noticed — and they’re understandably quite upset.
I’d like to discuss something else, however: the story of how Moscow Mayor Yuri Luzhkov used the Russian legal system to earn more than 1 million rubles.
The basic facts are these: on March 28, 2010, the Sovelovskii Court of Moscow sentenced Vladimir Zhirinovsky to a fine of 1 million rubles, half of which has to be paid to Mayor Luzhkov personally (the other half will go to the city government). Last year, Boris Nemtsov was also forced to pay Luzhkov 500 thousand rubles in a separate defamation suit.
The former defamation suit, contrary to what many may have thought after reading about Zhirinovsky’s more recent criticism of Luzhkov, is actually based on an incident from last year. Luzhkov sued Zhirinovsky because, in October 2009, he went on television and called the mayor “a source of corruption” and “a break [on progress] for all the country.” Luzhkov estimated that his non-pecuniary damage (moral’nyi ushcherb) was worth 3.5 million rubles. The judges generously reduced this figure to a cool million, and allocated just half to the mayor.
In September last year, Boris Nemtsov published a pamphlet about Mayor Luzhkov, wherein he criticized the man harshly. The following November, the Zamoskrovetskii Court of Moscow forced Nemstov to pay 500 thousand rubles to Luzhkov, and 40 thousand rubles to his wife. Luzhkov had asked the court to order the retraction of six different statements in the pamphlet, but the judges only agreed to strike one. That one sentence read as follows: “For many Muscovites, it’s long been no secret that corruption has penetrated all levels of Moscow authorities. To us it is obvious that a pernicious example [is set] for Moscow officials by Yuri Luzhkov and his wife.”
While these happen to be the two highest-profile defamation cases in recent Russian history, Gazeta.ru reports that Luzhkov has won “around fifty” such suits in his 17 years in office. In October 2009, Ramzan Kadyrov successfully sued Memorial head Oleg Orlov for 70 thousand rubles, when Orlov accused him of having a role in the assassination of human rights activist Natalya Estemirova. “I know the name of this person [who is responsible for the murder],” Orlov had written. “His name is Ramzan Kadyrov.” In May 2003, a Moscow arbitration court convicted Vadim Kleiner, Vedomosti, and Vremia Novostei of defamation in a suit by Sberbank (a decision overturned the following year). The crime had been pointing out Sberbank’s unprofitable business decisions and need for layoffs.
In short, Russia’s laws on defamation and libel are rather different from ours, where calling a politician a murderer or a crook is fairly common. American precedent on false public statements rests on the 1964 Supreme Court trial “New York Times Co. v. Sullivan.” You can read all about it on Wikipedia, but the gist is that individuals and the media can only be found guilty of a crime if their false reporting about an elected official or public figure demonstrates “actual malice.” From Wikipedia:
The actual malice standard requires that the plaintiff in a defamation or libel case prove that the publisher of the statement in question knew that the statement was false or acted in reckless disregard of its truth or falsity. Because of the extremely high burden of proof on the plaintiff, and the difficulty in proving essentially what is inside a person’s head, such cases—when they involve public figures—rarely prevail.
The Russian legal codes defining speech liability are Articles 43 and 46 of the Russian law on mass media, Article 152 of the Civil Code (for “encroachments on honor, dignity and business reputation”), and Article 129 of the Criminal Code (for slander). For the most part, the defamation suits you hear about in the news are founded on violations of Article 152. There is no Russian parallel to the NYT v. Sullivan case, so there are no special rules for defamation of public people. What this means is that the burden of proof falls on the speaker of the said-defamation, and — in the absence of overwhelming evidence — a person can be convicted of a crime for extremely unspecific commentary.
I went looking on the RuNet for a Russian perspective on why things are this way over there, and I came across an interesting (though, I wouldn’t say “convincing”) article that appeared in the journal “Law & Politics” in 2001. Titled “Defamation and Its Place in Russian Civil Rights,” I’ve translated the following snippets from the conclusion:
Introducing the “Sullivan rule” into Russian law in connection with the rights of the defense, as afforded by the civil and criminal codes, could infringe on the material interests of the victims in this category and make it impossible to control the dissemination of information by the mass media and the publication of retractions.[…]
In accordance with Clause 2, Article 1 of the Civil Code of the Russian Federation, civil rights may be restricted on the basis of federal law only to the extent that it is necessary to protect the constitutional order, morality, health, rights, and lawful interests of others, for the national defense, and the security of the government. Therefore, introducing the change that would be effected by the “Sullivan rule” […] would allow (because of an absence of liability) the mass media to “carelessly” disseminate untrue materials, defaming officials and public figures — not only ignoring true information but, on the contrary, openly contradicting known facts.[…]
We are of the view that the mass media’s dissemination of false information, defamatory statements, and false value judgments [lozhnykh otsenochnykh suzhdenii], based on verifiable facts, should result in both civil and criminal liability regardless of under what category the perpetrator falls. It is all the more necessary to consider that the classification of public figures is extremely conditional.
As many of you know from the details of the Orlando Figes scandal, Britain’s defamation practices bear some resemblance to this Russian reluctance to “infringe on the interests of the victims.” Just last March, a London court awarded Boris Berezovsky $225,000 (6.7 million rubles) from RTR Planeta, which suggested that he tried to obtain political asylum with false evidence and then ordered the murder of Alexander Litvinenko, who allegedly learned of Berezovsky’s crime.
All this is to say that Russia’s legal reforms may start with modifications and mollifications of pre-trial detention, but there are other very broad issues to remember, as well. Just as excessively harsh treatment of the business community scares off what Medvedev and Putin both refer to as the “locomotives of the country,” granting public officials the same defamation rights as private citizens has an undeniable chilling effect on social discourse. While the Russian authorities might not unreasonably fear an overflow of tabloid culture, anybody who’s suffered a supermarket checkout stand or a visit to the Internet is well aware that the alternative — a world where journalists and public figures are constantly suing each other — is far less fun.