Olga Bykova v. Russian Federation

The author of the communication is Olga Bykova, a national of the Russian Federation born in 1966. She claims to be a victim of a violation, by the State Party, of her rights under articles 2, 5 (1) and (2), 7, 9 (1), 14 (1), (2) and (3) (a), (b), (d) and (e), 17 (1) and (2), 19 (3) and 26 of the Covenant. The Optional Protocol entered into force for the State Party on 1 January 1992. The author is not represented by counsel.

The author and her husband, Pavel Bykov, lived on the ground floor of an apartment building in Moscow at the time of the events. On a lawn beneath their windows, their neighbour, P, set up an unauthorized shelter for stray dogs. With time, the pack of dogs became increasingly aggressive towards residents, particularly those with motor impairments, such as the author, who had a second-degree disability due to her health condition, namely, multiple sclerosis. Distressed, the residents appealed to various authorities to have the dog shelter removed.

On 22 August 2008, P complained about a possible dog poisoning to the Ryazansky District police department in Moscow. The police report indicated that, when an officer arrived at the scene, there were no dead dogs, no evidence of a crime and no witnesses. P claimed that she had found pills on the ground and suspected that the author had poisoned the dogs, as the author had been vocal in complaining about the shelter. The police questioned the neighbours, including the author’s husband, and reviewed video surveillance footage, but it proved impossible to identify the person responsible for the alleged poisoning. On 1 September 2008, the district police declined to initiate criminal proceedings under article 245 of the Criminal Code (cruelty to animals) due to the absence of evidence. In the same decision, the police declined to pursue criminal charges against P for false accusation, as requested by Mr. Bykov under article 306 of the Criminal Code. It was noted in the decision that Mr. Bykov should be informed of his right to file civil proceedings against P, as the information gathered indicated potential elements of defamation in her actions under article 129 (1) of the Criminal Code.

On 5 September 2008, a film crew from the federal television channel NTV visited the author’s apartment in connection with the incident reported by P. The author’s husband answered questions from a journalist, K, denying the alleged involvement of his wife in the poisoning of the dogs. Mr. Bykov informed K of the outcome of the preliminary police inquiry. On 9 September 2008, at 3.30 p.m. and again at 6.30 p.m., a video report about the events was broadcast by NTV as part of the news programme Chrezvychainoe proisshestvie (“Emergency Incident”). At 9.10 p.m., a report entitled “Zhertvy ne lyudi” (“The victims are not humans”) was aired as part of the news programme Ekstrennyi vyzov 112 (“112 Emergency Call”) on the federal television channel of the television company Peterburg, using footage filmed and narrated by the crew of Chrezvychainoe proisshestvie. Both channels have millions of viewers across the country.

In the Chrezvychainoe proisshestvie programme, it was explained that there had been a “murder” in the courtyard of an apartment building in Moscow, with four “deceased”. It was noted that the residents had filed a report with the police and had provided evidence, namely, a “possible murder weapon” and footage from a surveillance camera installed above the entrance to the apartment building, and the question was raised as to why the female “suspect” had not been arrested. It was explained that one of the residents had brought the other residents to tears when she had had to inform them that the dogs, which had been widely loved in the apartment block, had been “poisoned”. It was noted that officers were examining footage from the camera. Footage from 1 a.m., 2 p.m. and 4 p.m. was shown as part of the broadcast, depicting a woman who was identified as the author. It was explained that one of the residents had immediately recognized the woman as her neighbour, the author, and that the woman had been seen throwing “something from a bag”.

In the report “Zhertvy ne lyudi”, broadcast by Peterburg, the following words were spoken: “Residents of a Moscow apartment building have exposed a serial killer, but the police are not yet concerned about their information. There is no mention of the crime in the reports of the Central Department of Internal Affairs for Moscow. After all, the victims are not humans, but dogs. And although we punish cruelty towards animals, the authorities have not yet intervened in this specific situation.” In addition, the following words were spoken: “This is the footage from a surveillance camera. The film clearly shows a dog convulsing; within minutes, the animal will die.” Furthermore, the following words were spoken: “Four street dogs lived near the building. Some of the residents fed them, while others, by contrast, petitioned various authorities just to have the animals removed from the area. But despite numerous complaints, no one responded.” Later in the broadcast, the following words were spoken: “Then, Olga Bykova decided to take matters into her own hands. First, she got poison.” In addition, the following words were spoken: “In the space of two hours, a woman with a walking stick went outside three times with some kind of package. Here she is bending down to the animal, hardly wanting to pet it. And here she is throwing something on the ground.” Furthermore, the following words were spoken: “And takes something from a bag and sprinkles it on the ground.” There was then a discussion in the studio, during which one participant said: “Can we somehow hold this woman accountable? Should someone be dealing with this, and will they? … So you can understand this woman, who, apparently, became a murderer, right? Yes, the word ‘murderer’ is probably appropriate… In this specific case, the dogs are dead.”

On 28 May 2009, the author filed a civil claim for the protection of honour, dignity and professional reputation against both television companies, NTV and Peterburg, to the Presnensky District Court and demanded a retraction of defamatory information. She alleged that the statements made during the television shows in question implied her involvement in the poisoning of dogs.

On 5 August 2009, the Presnensky District Court decided to split the proceedings in relation to the two television companies and referred the complaint against Peterburg to the Kuybyshev District Court in Saint Petersburg. On the same day, the Presnensky District Court rejected the author’s civil complaint against NTV. On the basis of the transcript of the programme Chrezvychainoe proisshestvie, provided by NTV, the Court found that the phrases contested by the author, as broadcast by NTV, did not contain inaccurate statements or defamatory information within the meaning of article 152 of the Civil Code. On 17 November 2009, the Moscow City Court quashed the decision of the Presnensky District Court of 5 August 2009 and ordered a re-examination of the case by the first instance court in a new composition. The Moscow City Court also quashed the decision of the Presnensky District Court to refer the complaint against Peterburg to a court in Saint Petersburg.

On 17 November 2010, the author’s civil complaints against the two television companies were admitted for consideration by two different judges of the Presnensky District Court. On 2 September 2011, both proceedings were joined. On 12 April 2012, the Presnensky District Court rejected the author’s claims in relation to both respondents. Relying on a report containing the findings of a linguistic analysis of the phrases contested by the author, which had been conducted by professor B, and provided by NTV, the court concluded that the contested phrases stated an objective fact – dogs had died for an unknown reason – and the different views of neighbours and the author’s husband in this regard. The court did not find that these phrases contained defamatory information indicating criminal, dishonest or unethical behaviour by the author and could not, therefore, be contested under article 152 of the Civil Code. On 10 September 2012, the Moscow City Court upheld the decision on appeal. The author unsuccessfully attempted to appeal the decisions of 12 April and 10 September 2012 to the Presnensky District Court, the Presidium of the Moscow City Court and the Supreme Court. The author submitted numerous complaints to non-judicial authorities, including the Ombudsman, the President’s Office and the prosecutor’s office, without any intervention from their side.

The author claims that the broadcast of the two television programmes and treatment of her complaint by the State authorities and courts violated her rights under articles 2, 5 (1) and (2), 7, 9 (1) and 19 (3) of the Covenant.

The author claims that, by broadcasting defamatory reports about the alleged killings of the dogs and referring to her as a “suspect” and “murderer”, in the absence of pending criminal proceedings or a conviction by a court, the television companies violated article 14 (1), (2) and (3) (a), (b), (d) and (e) of the Covenant. The author claims that the procedural violations committed throughout the court proceedings prolonged the proceedings. She claims that the fact that the court relied on the findings of a linguistic analysis provided by one of the respondents, instead of an independent assessment, the fact that it failed to ensure the participation of Peterburg in all the hearings, and the excessive delay in the questioning of a witness by a court in Saint Petersburg, upon request of the Presnensky District Court, delayed the proceedings.

The author alleges that the State Party failed to protect her from an unlawful attack on her honour and reputation through the dissemination of defamatory information by the television companies, in violation of article 17 (1) of the Covenant.

The author claims that she has been discriminated against as a woman and a person with a disability by the domestic courts, in violation of article 26 of the Covenant.

The author requests a written apology from the State Party, accountability for those responsible for the violation of her rights, the annulment of the decision of Presnensky District Court of 12 April 2012, along with all related rulings, the initiation of new civil proceedings, and compensation for the violation of her rights and the resulting non-pecuniary damage.

On 27 July 2017, the State Party submitted its observations on the admissibility of the communication. The State Party contests the author’s allegations under articles 2, 5 (1), 7, 9, 14 (2) and (3) (a), (b), (d) and (e), 19 and 26 of the Covenant as unsubstantiated and inadmissible under article 1 of the Optional Protocol (for the article 19 claims) and article 2 of the Optional Protocol (for the remaining claims).

The State Party submits that the author’s claims under articles 14 (1) and 17 (1) of the Covenant relate to the evaluation of facts and evidence by the domestic courts. The State Party considers that the domestic proceedings in the author’s case display neither arbitrariness nor a manifest error or denial of justice and that the author’s claims should be found inadmissible as unsubstantiated under articles 1 and 2 of the Optional Protocol.

On 15 February 2018, the State Party submitted its observations on the merits of the communication. The State Party denies that the author’s rights under article 14 (1) of the Covenant have been violated by the domestic courts. It submits that the author was represented in all court proceedings and that her representatives took the floor and presented their arguments. She was able to contest all the evidence presented in court, including the report on the linguistic analysis conducted by professor B. The Presnensky District Court, as well as the appeal court, carefully assessed all the evidence in the case, including the witness testimonies and the report on the linguistic analysis. According to the State Party, there is nothing in the courts’ reasoning that suggests arbitrariness, manifest error or a denial of justice.

In response to the author’s claim that the proceedings in her case were excessively prolonged, the State Party states that the author has failed to request compensation for damage caused by unreasonably prolonged judicial proceedings under Act No. 68-FZ of 30 April 2010.

On 26 June 2018, the author provided her comments on the observations of the State Party. She reaffirms her claims under all the articles that she originally invoked and insists on their admissibility.

The author states that the right to claim compensation for excessively prolonged proceedings under Act No. 68-FZ is only a right and not an obligation. A claim for compensation for the damage caused by unduly prolonged proceedings would not remedy the violation of the principle of a fair trial. Given the delays in the civil proceedings in her case, if she had filed such a claim, either the claim could have been lost or its examination could have been delayed indefinitely, leading to additional financial and time-related costs for the author.

The author further asserts that she was not given an opportunity to challenge the linguistic expert report submitted by one of the respondents due to a violation of the principle of equality of arms. She alleges that, even though she did not contest the report, the courts should not have admitted unlawful evidence. She claims that the courts placed her at a disadvantage by giving preference to the respondent’s evidence, while disregarding her own. This reliance on a single piece of evidence presented by the opposing party, she argues, demonstrates arbitrariness and a denial of justice.

On 20 April 2020, the State Party submitted additional observations, reiterating its previous position. It argues that the author’s comments essentially reflect her dissatisfaction with the decisions of the domestic courts. She fails to provide substantive evidence of any harm caused by the allegedly unlawful judicial decisions. The State Party notes that the author interprets domestic and international law selectively and has knowingly refused to exhaust available domestic remedies. Moreover, the use of provocative language, unfounded accusations and an overall tone of disrespect towards the State Party exceeds the limits of normal, civil and lawful criticism. The State Party concludes that the communication is of a vexatious nature and should be deemed inadmissible as an abuse of the right of submission under article 3 of the Optional Protocol.

Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

The Committee notes the State Party’s argument that the author failed to substantiate her claims under articles 2, 5 (1), 7, 9 (1), 14 (1), (2) and (3) (a), (b), (d) and (e), 19 and 26 of the Covenant. The Committee notes that article 2 is of an accessory nature and can be raised only in conjunction with substantive provisions of the Covenant.⁴ The author does not specify any details of her claims under this article. The Committee finds this claim unsubstantiated and inadmissible under article 2 of the Optional Protocol.

4. M v. Belgium (CCPR/C/113/D/2176/2012), para. 6.5. ↩

The Committee recalls that article 5 of the Covenant is of a general nature and cannot, in itself, be a basis for an individual claim.⁵ The Committee finds the author’s claim under that article unsubstantiated and inadmissible under article 2 of the Optional Protocol.

5. Wackenheim v. France (CCPR/C/75/D/854/1999), para. 6.5. ↩

The Committee notes that the author has never been arrested or detained. Therefore, article 9 of the Covenant has no application to her case. The Committee notes the author’s general allegation that the broadcasting of defamatory information about her had a negative effect on her physical and mental state and violated her rights under article 7 of the Covenant. The Committee notes that the author does not substantiate sufficiently her claims under this article. The Committee also notes that article 14 (2) and (3) (a), (b), (d) and (e) of the Covenant confers protection to defendants in a criminal case and is not applicable to the present communication. Neither does article 19 of the Covenant relate to the present communication, since the author does not claim a violation of her right to freedom of expression. The Committee finds this part of the author’s claims insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claim that the proceedings in her case have been unduly prolonged and the State Party’s claim that the author knowingly refused to exhaust available domestic remedies. The Committee recalls its jurisprudence to the effect that authors must avail themselves of all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author.⁶ The Committee also recalls that mere doubts about the effectiveness of the remedies, or in this case about the relevance of such remedies, do not absolve an individual from exhausting available domestic remedies.⁷ The Committee observes that the author does not dispute the availability of the remedy, nor does she offer arguments to demonstrate its ineffectiveness. Instead, she declined to pursue it on the basis of personal doubts (see para. 5.2 above). In these circumstances, the Committee finds that the author failed to exhaust domestic remedies and, accordingly, declares her claim under article 14 (1) regarding the length of the civil proceedings inadmissible under article 5 (2) (b) of the Optional Protocol.

6. For example, Warsame v. Canada (CCPR/C/102/D/1959/2010), para. 7.4; Leghaei et al. v. Australia (CCPR/C/113/D/1937/2010), para. 9.3; and Alekseev et al. v. Russian Federation (CCPR/C/134/D/2943/2017, 2953/2017 and 2954/2017), para. 6.4. ↩
7. Meng Qin Chen v. Netherlands (CCPR/C/94/D/1584/2007), para. 6.2; Alekseev et al. v. Russian Federation, para. 6.4; and P.F. and M.F. v. France (CCPR/C/130/D/2780/2016), para. 10.9. ↩

The Committee notes the author’s claim under article 14 (1) of the Covenant that her right to fair trial in civil proceedings was violated through numerous irregularities. The Committee considers, however, that, despite multiple allegations, the substance of the complaint, as supported by the documents on file, relates to the assessment performed by the domestic courts of her honour- and reputation-related claims, which fall under article 17 of the Covenant, rather than the fair trial guarantees under article 14 (1). In alleging procedural violations under article 14 (1), the author relies on her own interpretation of domestic law, which is not sufficient to substantiate her claims. The Committee therefore finds this part of the author’s claims insufficiently substantiated and inadmissible under article 2 of the Optional Protocol.

The Committee notes the author’s claims that she has been discriminated against as a woman and a person with a disability. The Committee notes that the author has not raised these claims at the domestic level and finds her allegations under article 26 of the Covenant inadmissible under article 5 (2) (b) of the Optional Protocol for failure to exhaust domestic remedies.

The Committee notes the State Party’s argument about the vexatious nature of and abusive language used in the author’s submission, in violation of article 3 of the Optional Protocol. The Committee considers that, although emotional, the submission is neither offensive nor intentionally misleading and does not amount to an abuse of the right of submission under article 3 of the Optional Protocol.

The Committee finds that the author’s claims under article 17 of the Covenant are sufficiently substantiated for the purposes of admissibility and therefore proceeds with its consideration of the merits.

The Committee has considered the present communication in the light of all the information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol.

The Committee takes note of the author’s allegations under article 17 (1) of the Covenant that her honour and reputation were attacked in programmes broadcast by the NTV and Peterburg television companies. The Committee recalls that article 17 recognizes the right of everyone to protection against unlawful attacks on their honour and reputation, regardless of whether they emanate from State authorities or from natural or legal persons.⁸ This article imposes positive obligations on the State to adopt legislative and other measures enabling everyone to be protected from an unlawful attack. The State is also required to provide effective remedy against those responsible for such attacks.⁹ To determine whether there has been a violation of article 17, the Committee will consider: (a) whether there has been an attack on the author’s honour and reputation; (b) whether the attack was unlawful; and (c) whether the State Party fulfilled its positive obligation to provide an effective remedy that enabled the author to protect her rights.

8. General comment No. 16 (1988), para. 1. ↩
9. Ibid., para. 11. ↩

The Committee notes that the author was mentioned by name in two television news programmes in reports dedicated to the poisoning of stray dogs, in which the terms “murder”, “serial killer”, “suspect” and “poison” were used. At one point, it was explained that the author “decided to take matters into her own hands” and acquired “poison” (see para. 2.5 above). After the author had been mentioned by name in relation to poison, in the studio discussion that followed the report broadcast by Peterburg, the words “this woman” and “murderer” were used, and the need to hold her accountable was mentioned. These elements are sufficient for the Committee to consider that the television programmes linked the author, by name and appearance (a “woman with a walking stick”) (see para. 2.5 above), to the poisoning of stray dogs. Even if couched in indirect or speculative language (e.g., the claim that “something” was thrown from a bag), the framing and implications clearly pointed to wrongdoing, affecting her honour and reputation. The use of emotionally charged terms such as “serial killer”, “murder” and “poisoned”, in close association with the author’s name, would likely lead viewers to conclude that she was guilty of malicious behaviour, regardless of legal disclaimers. The Committee considers that there has been an attack on the author’s honour and reputation within the meaning of article 17 (1) of the Covenant.

It is for the courts of the State Party to establish whether the attack was unlawful. The Committee does not replace domestic courts in the assessment of facts or the interpretation of national law, unless the assessment or interpretation was manifestly arbitrary or clearly unjustified and resulted in a denial of effective protection under the Covenant.¹⁰

10. Mutatis mutandis, G.J. v. Lithuania (CCPR/C/110/D/1894/2009), para. 8.10; V.K. v. Russian Federation (CCPR/C/116/D/2411/2014), para. 6.6; and Akulich v. Belarus (CCPR/C/140/D/2987/2017), para. 7.2. ↩

In the present case, the domestic courts found that the author’s claims did not meet the standards for protection from defamation under the relevant national legal framework, namely, article 152 of the Civil Code, because the information in the broadcasts constituted an opinion rather than a verifiable fact (see para. 2.8 above). The Committee notes, however, that, in reaching this conclusion, the courts failed to engage with the key piece of evidence submitted by the author: the police report of 1 September 2008, which stated that there was no proof of the author’s involvement in the alleged poisoning and characterized the allegations against her as potentially defamatory. Some of the statements made in the broadcasts contradicted the findings of the police report, for example the claim that the neighbours handed over to the police a “possible murder weapon”, that officers were examining footage from the surveillance camera or that residents had exposed a “serial killer”. Even the fact of the killing of the dogs was not confirmed by the police report.

In addition, the courts relied heavily on a report prepared by professor B and submitted by NTV, one of the respondents. In the report, B interpreted the incriminating language used in the broadcasts in a narrow manner, taken out of the context of the broadcasts. The courts did not seek an independent expert opinion to ensure impartiality, nor did they assess how terminology relating to the criminal process would be understood in the specific context of the investigative programmes.

In the light of these omissions – namely, the disregard for the factual evidence, the failure to assess the language used in the broadcasts in its proper context and the reliance on a report provided by an interested party – the Committee concludes that the domestic courts did not adequately assess the evidence in the author’s case. As a result, the State Party failed to carry out its positive obligation to protect the author from an unlawful attack on her honour and reputation and to provide her with an effective remedy, as required by article 17 of the Covenant.¹¹

11. General comment No. 16 (1988), para. 11. ↩

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the facts before it disclose a violation by the State Party of the author’s rights under article 17 of the Covenant.

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to provide the authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, the State Party is obligated to provide the author with adequate compensation, including reimbursement of any legal costs that she has incurred, and to allow her to request a reversal of the civil proceedings in her case. The State Party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future.

Bearing in mind that, by becoming a party to the Optional Protocol, the State Party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy when it has been determined that a violation has occurred, the Committee wishes to receive from the State Party, within 180 days, information about the measures taken to give effect to the Committee’s Views. The State Party is also requested to publish the present Views and to have them widely disseminated in the official language of the State Party.