Limonov v. Russia and the Protection of Political Criticism Under the ECHR


In its final judgment in the case Savenko (Limonov) v. Russia (Application no. 29088/08), delivered this week, the European Court of Human Rights (ECtHR) continues to elaborate its jurisprudence on the boundaries of the freedom of expression in the context of political criticism. The ECtHR found that Russian courts violated Article 10 of the European Convention on Human Rights (ECHR) because they categorised political criticism as defamation without having due regard to the circumstances of the case, and also because they ordered an unpredictably large amount in damages to be paid.

Many of us know Eduard Savenko, also known as Eduard Limonov, through the famous biographical novel of 2011 by the French writer and journalist Emmanuel Carrère. Savenko is a Russian national who is renowned, inter alia, for being an opposition politician and writer.

The facts of the case stem from his participation in a live radio debate in 2007, on the subject of a domestic court decision upholding the prohibition of a demonstration (the so-called ‘Dissenters’ March’, of which Savenko was an organiser). He stated that, in his view, the courts in Moscow were controlled by the mayor of Moscow. A case was brought against him based on that statement, and the national Russian courts declared that he had made defamatory remarks. He was ordered to pay 500,000 roubles to the mayor of Moscow. The Russian courts found that Savenko had undermined public confidence in the authorities and caused particular moral harm to the mayor, who was not an ordinary citizen but an elected head of the executive. In 2009, as Mr Savenko’s request to pay the award in instalments were denied and he was unable to pay the amount in full, the Russian courts also permanently restricted his right to leave Russia.

The case was then brought before the ECtHR, which found that the Russian courts had violated Mr Savenko’s freedom of expression by holding him liable for defamation without balancing the interests of the parties in the case, and without carrying out an acceptable assessment of the relevant facts. The ECtHR took the opportunity to systematise its previous case law from cases such as Dichand and Others v. Austria and Krasulya v. Russia, identifying certain relevant elements that must be considered by national authorities when applying the balancing test required under Article 10 ECHR.

Specifically, the ECtHR referred to four elements. Firstly, that Mr Savenko acted as the leader of opposition groups and raised issues which were matters of public interest, and which therefore had a high level of protection under Article 10 ECHR: the exercise of political rights and the functioning of the judiciary. Secondly, that his comments were made during a radio debate, because a live debate allows for a greater degree of overstatement due to its oral format, and therefore can not be held to the same standard of accuracy as written assertions. Thirdly, that his criticism was aimed at a politician, for whom the level of acceptable criticism should be higher than for private individuals. And, fourthly, that the Russian courts had not ruled against the mayor in any previous case, and therefore that there was a certain factual basis to Mr Savenko’s strong reaction.

The ECtHR found that the Russian courts violated Mr Savenko’s freedom of expression also because of the large amount in damages he was ordered to pay. In this regard, the ECtHR highlighted that unpredictably large awards of damages in defamation cases require careful scrutiny because of their potential ‘chilling effect’ on the freedom of expression. The ECtHR thus follows the ‘chilling effect’ approach it had already taken in cases as Bladet Tromsø and Stensaas v. Norway or Kasabova v. Bulgaria.

Concerning the amount of the damages, in one of the more interesting paragraphs of the judgment, the ECtHR dismissed the Russian assessment that the suffering of the elected head of an executive had a greater value than that of an ordinary citizen. It was rather the opposite (see for example Couderc and Hachette Filipacchi Associés v. France): politicians should accept strongly worded criticism and cannot claim the same level of protection as private individuals who are unknown to the public, especially when such criticism does not concern their private life.

 All in all, the Limonov judgment encapsulates and systematises the pre-existing case law of the ECtHR, and it does so in a case with a particular media outreach and within a context of regression concerning the freedom of expression in several States of the Council of Europe. The potential of this judgment to counteract such a retrogressive trend, however, still remains to be seen.

About the author

Dolores Utrilla

Dolores Utrilla is reader in Public Law in the University of Castilla La Mancha and the author of "Las garantías del derecho de propiedad privada en Europa. Derecho de la Unión Europea y Convenio Europeo de Derechos Humanos", Civitas, Madrid, 2011 (The guarantees of the right to private property in Europe. European Union Law and European Convention of Human Rights).

By Dolores Utrilla