Chechen Republic, Kurchaloyevskii Region, Centaroi village

Defendants:

Oleg Petrovich Orlov

Memorial Human Rights Center

127051, Moscow, Maly Karetny Pereulok, 12


Objections to the claim for the protection of honor, dignity, business reputation and compensation for moral harm

Ramzan Kadyrov and his representative A.A. Krasnenkov appealed to the court with an action against O.P. Orlov and the Memorial Human Rights Centre which called for the protection of the plaintiff's honour, dignity and business reputation, as well as monetary compensation for moral harm done, in the order of 10,000,000 (ten million) roubles. According to the plaintiff, information contained in a statement relating to the murder of Natalya Estemirova released by and posted on the website of Memorial Human Rights Centre on July 15th, 2009 was false.

O.P.Orlov and the Memorial Human Rights Centre (the defendants) contest these claims.

The plaintiff asks the court to accept the inaccuracy of the following fragments of the disputed statement:

  1. I know and I am sure who is guilty of the murder of Natalya Estemirova. We all know this person. He is called Ramzan Kadyrov, President of the Chechen Republic. Ramzan had already threatened Natalya and considered her his personal enemy. We don’t know whether he gave the order himself or if this was done by his aides to please their boss. President Medvedev is evidently content to have a murderer as the head of one of Russia’s republics.

  2. When Natalya disapprovingly spoke out about the fact that girls were being almost violently forced to wear head scarves in public places, she had a conversation with Kadyrov. She said that Kadyrov threatened her, saying: ‘yes, I have blood up to my elbows. I’m not ashamed of it. I’ve killed and I will kill bad people. We are fighting against the enemies of the Republic’.

  3. We know that the last of Natalya’s reports communicated new kidnappings, punishment without trial and a public execution in one Chechen village that caused indignation at the highest levels in Chechnya.

  4. Ramzan Kadyrov made the work of human rights defenders impossible in the Republic.

In accordance with p.7 Resolution of the Plenum of the Supreme Court of the Russian Federation on 24.02.2005 N. 3 ‘Judicial practice for cases concerned with the protection of citizen’s honour and dignity, and also the business reputation of citizens and legal personnel’: ‘For cases within this category, it is necessary to take into account the circumstances relevant to the case by virtue of article 152 of the Civil Code of the Russian Federation that should be defined by the judge at admission of the statement of claim and preparation of the case, plus during the course of the legal investigation and during hearings, as the following: the fact of distribution of information about the plaintiff by the defendant, discrediting the character of the information and disagreeing about its validity. In the absence of one of these prescribed circumstances the claim cannot be satisfied by the court’. In the same P. 7 Resolution of the Plenum of the Supreme Court of the Russian Federation there is clarification that ‘Disagreement about the validity of the information may be described as statements about facts or events that had no place in reality at the point in time to which the information relates’.

Fragment 1 does not contain information that discredits the honor, dignity and business reputation of the plaintiff. In addition, the information is based on fact. The defendants did not mention the participation of the plaintiff in the murder and complaints about such remarks are invalid. The word ‘guilty’ is not used in the fragment in a legal sense, but in a moral, social and political sense.

In this context, the plaintiff’s guilt for the murder of human rights defender Natalya Estemirova results from his position as the President of the Chechen Republic.

In accordance with the Constitution of the Chechen Republic, ‘the protection of the rights and liberties of individuals and citizens is a responsibility of the Chechen Republic, state organs and its personnel’ (Article 14 of the Constitution of the Chechen Republic). ‘The President of the Chechen Republic is the highest representative of the Chechen Republic and heads the executive power of the Chechen Republic’ (Article 63 of the Constitution of the Chechen Republic). He takes an oath ‘as President of the Chechen Republic to respect and protect the rights and liberties of individuals and citizens, to protect the rights of the multinational peoples of the Chechen Republic and loyally serve them, to observe and defend the constitution of the Chechen Republic and laws of the Republic (Article 64 of the Constitution of the Chechen Republic).

It is obvious that the murder of Natalya Estemirova was an infringement of the human right to life. Ramzan Kadyrov is guilty in that, despite the Constitution of the Chechen Republic, that right was not defended and protected.

R. Kadyrov can be held accountable for whatever occurs in the Chechen Republic. As stated on the website of Ramzan Kadyrov (http://ramzankadyrov.ru/press.php?releases&press_id=1044&month=07&year=2007) ‘…for all that happens in the Republic…I am personally responsible. Therefore, the plaintiff recognises and accepts that by occupying the highest position within the Republic, he is responsible for the events that occur within the Republic, including the kidnap and murder of the human rights defender Natalya Estemirova.

Moreover, multiple facts and media reports give credence to the claim that Kadyrov has a significant degree of command and control over the security forces in the Chechen Republic. Information gathered by human rights organizations, media material as well as pronouncements made by personnel of the Chechen Republic demonstrate that in the Chechen Republic human rights are systematically infringed upon. As a result, the moral and political responsibility of Ramzan Kadyrov further increases given that the state organs dedicated to defending the rights of citizens allowed the murder of Natalya Estemirova.

The claim “I know and I am sure who is guilty of the murder of Natalya Estemirova. We all know this person. He is called Ramzan Kadyrov and he is the President of the Chechen Republic” is based on facts as demanded by the aforementioned Plenum of the Supreme Court. Additionally, given the definition of inaccurate information provided in the Resolution of the Plenum of the Supreme Court on 24.02.2005, it is evident that the fragment does not include information that cites facts and events, but rather denotes value judgments relating to the responsibility of the plaintiff for the events happening in the Chechen Republic. This point is particularily emphasized by the use of the words “I am sure”.

In fact, the New Russian Dictionary. T.F. Yefremova. M: Russian Language, 2000 (http://www.gramota.ru) defines ‘guilt’ as: ‘Responsibility for a misdemeanor, crime// reason of any kind (usually undesired)’.

The same dictionary gives a definition of the word ‘responsibility’ as ‘placing on someone or taken by someone, the obligation to give an account in some way of their actions and accept guilt for the possible consequences'.

It is in this sense, and not in a legal sense, that O.P. Orlov used the word ‘guilty’.

The claim that ‘Ramzan had already threatened Natalya and considered her his personal enemy’ is true in so far as it was confirmed by people to whom Natalya Estemirova had spoken.

The unfavorable attitude of the plaintiff towards Natalya Estemirova, as well as his inclination to voice this attitude is confirmed by the fact that even after the murder of the human rights defender, he could not refrain from further derision.

In an interview with the radio station Radio Svoboda after the murder of Estemirova, Ramzan Kadyrov said the following: ‘She never had honour, dignity or a conscience’.

http://www.svobodanews.ru/content/article/1795518.html

The fragment ‘We don’t know whether he gave the order himself or this was done by his aides to please their boss’ does not contain information about facts or events, besides which it is expressed that it is unknown to the defendants whether the circumstances existed or not.

In the disputed fragment ‘President Medvedev is evidently content to have a murderer as the head of one of Russia’s republics’ there is no mention or reference to the plaintiff. Therefore, the fragment does not discredit his honor, dignity or business reputation. Nevertheless, if the plaintiff believes the word murderer is a reference to himself and thus wishes to take this fragment into account, then this information is still not misleading and stems from the plaintiff's own claims Kadyrov himself asserted that he had participated in the murders of various people and has a positive attitude to such participation. These claims have also been distributed by the media and not disputed by the plaintiff.

Ramzan Kadyrov on the 31st of March 2008 said to the subsequently murdered Natalya Estemirova, when she occupied the post of representative of the Grozny Civic Council to observe the rights and liberties of individuals and citizens: ‘yes, I have blood up to my elbows. I’m not ashamed of it. I’ve killed and I will kill bad people’.

Several witnesses assert that the murdered Natalya Estemirova related these words to them herself.

Furthermore, on the 21st of June 2004 in an interview published in Novaya Gazeta with the later murdered Anna Politikovskaya, (http:politkovskaya.novayagazeta.ru/pub/2004/2004-051.shtml), the plaintiff admitted that he had personally given orders to kill people:

The plaintiff therefore admitted that he has participated in murders as an organiser or an instigator.

Additionally, in October 2005, Ramzan Kadyrov, in an interview with a correspondent from the men’s magazine GQ, said: ‘The one whom I should kill, I have already killed. Those who stand behind him will also be murdered to the last. They have not killed me and I will kill as long as I live’. (http://www.newsru.com/russia/05oct2005/Kadyrov.html)

In January 2008, in an interview with Echo Moskva, Kadyrov speaking on the theme of murder said (http:www.echo.msk.ru/programs/beseda/492292-echo/): ‘I certify officially, Khairull from Naur, surname Imurzaev from Dagestan took responsibility. I have the note, where he said: we killed Kadyrov senior, and we will kill Kadyrov junior. The morning would have been my inauguration, by the evening we had destroyed Imurzaev. Myskiev and others were also destroyed. Everybody knows that whoever killed Kadyrov will no longer live’.

In this way, the plaintiff directly and demonstratively admits to committing murder and conveys his intention to commit murder in the future; additionally he asserts his actions are justified and even positive.

2. The claim ‘When Natalya disapprovingly spoke out about the fact that girls were being almost violently forced to wear head scarves in public places, she had a conversation with Kadyrov’ doesn’t discredit the plaintiff.

In the same claim ‘She said that Kadyrov threatened her, saying: ‘yes, I have blood up to my elbows. I’m not ashamed of it. I’ve killed and I will kill bad people. We are fighting against the enemies of the Republic’. This is not a lie in so far as several witnesses confirm that Natalya Estemirova tolf multiple people about the threats made by the plaintiff at the March 31st meeting.

Specifically, she reported that Ramzan Kadyrov said in the course of the conversation that ‘good Chechen women don’t walk around with an uncovered head’ (Natalya Estemirova went to the meeting without a headscarf) and that the type of women who do not wear headscarves incite his ire. He asked Estemirova whether or not she was scared for her daughter's safety as a result of her behaviour.

According to Natalya Estemirova, Ramzan Kadyrov sharply demanded that as a representative of the Grozny Civic Council (a position in which Estemirova was to observe the rights and liberties of individuals and citizens) she stop visiting all ministries and departments that are under the control of the Chechen President. He also said that she would no longer be involved with human rights activities in Chechnya.

After these events, which were seen as threats toward the Memorial Human Rights Centre and Natalya Estemirova, Natalya, as a safety precuation, was sent away from Chechnya for several months.

According to reports from the internet resource ‘The Daily Journal’ (http://www.ej.ru/?a=note&id=9287), on the 24th of June 2009 in news from the television channel Grozny, Kadyrov stated his opinion of experts who had opinions counter to those held by the Chechen leadership in regard to the situation in the Chechen Republic since the end of the counter-terrorism operation: ‘I see the actions of those who spread and lead the propaganda as equal to those of bandits, terrorists and criminals’. Natalya Estemirova was one of these experts. On the 19th of February 2009, several days after the abolition of the regime of counter-terrorism in the Chechen Republic, Estemirova spoke about this topic on a program aired on the radio station Echo Moskva (http://www/echo.msk.ru/programs/oneword/586367-echo). Also as an colleague at the Memorial Human Rights Centre and in her own reports she evaluated the conditions in the Chechen Republic, thus equating her with ‘bandits, terrorists and criminals’.

As such, the fragment ‘She said that Kadyrov threatened her, saying literally: ‘yes, I have blood up to my elbows. I’m not ashamed of it. I’ve killed and I will kill bad people. We are fighting with the enemies of the Republic’, agrees with the evidence.

3. We know, that the last reports that Natasha prepared about recent abductions, extrajudical punishments and a public execution in the middle of a Chechen village were met with indignancy in Chechnya’s top leadership.

The give fragment does not contain information, which is discrediting the honour and dignity or the official reputation of the Plaintiff. In accordance with P. 7 of the Resolution of the RF Supreme Court’s Plenum from 24.02.2005 N 3 “On the court practice in cases on the defendance of the honour and dignity of a citizen, and on the official reputation of citizens and legal persons”, “an information is in particular discrediting, when it contains confirmation of the citizen’s or legal person’s violation of a law currently in force, of the perpetration of a dishonest act, of incorrect, unethical behaviour in personal, public or political life, of dishonesty in realizing industrial and economic activity or a violation of business ethics or the rules of business, which depreciate the honour and dignity of the citizen or the official reputation of either a citizen or a legal person”.

The fragment, cited by the Plaintiff does not contain such information.

The Plaintiff evidently views the affirmation that reports about recent abductions, about extrajudical punishments and about a public execution in the middle of a Chechen village were met with indignancy in Chechnya’s top leadership as discrediting to him, but the Plaintiff did not provide proof to back his view.

What is more, the given fragment does not even mention the Plaintiff.

Besides, the mentioned assertion does not correspond to the facts, evidence for which is at the Defendant’s disposal.

4. Ramzan Kadyrov made the work of human rights activists in the Republic impossible. The given fragment does not contain information which does not corresponding to concrete facts. It does not affirm, that Ramzan Kadyrov made the work of everyone, including himself and including human rights activists, impossible. The literal meaning of the given statement is, that R. Kadyrov made the work of a certain number of human rights defenders in the Chechen Republic impossible. It is beyond dispute that the work of official “human rights” organizations in the Chechen Republic continues, and that only the work of human rights activist who are really independent from the Republic’s leadership has become impossible.

First of all, it is obvious that the work of the human rights activist N. Estemirova and the leader of the Chechen non-governmental-youth organisation “We save the generation”, Zarema Sadulaeva, have become tragically impossible in the Republic within the last few months, as both of them were abducted and killed. Hereby, as mentioned before, according to the Petitioner’s own affirmations, published on the official website of the President of the Chechen Republic (http://www.ramzan-kadyrov.ru/press.php?releases&press_id=1044&month=07&year=2007), “...I am personally to be charged with everything, that is going on in the Republic”.

Secondly, the given fragment is confirmed by statements made by a number of human right activists that due to the attitude of Ramzan Kadyrov and his subordinates towards the activity of human rights activists, they can not continue their work in the Chechen Republic. The fragment is additionally objectively confirmed in that the Human Rights Center “Memorial” was forced to call the work of its office in Grozny to a halt after the abduction and murder of Nataly Estemirova. The human rights activists of the HRC “Memorial” link this curb directly to the work and inactivity of the President of the CHR.

The closest associates of the President of the CHR address direct threats to human rights activists. For example, the Deputy of the Russian State Duma A. Delimkhanov, according to the media, two weeks before the murder of N. Estemirova declared on television: “There are some people, who call themselves human rights activists, who help those devils (shaitans), those criminal boeviks (rebels, fighters), work for them and lead their activities, their politics....they lead different conversations..., but I know the mood in the militia, in the society, I know, what simple people talk about...They say, that the applications of these people...and of Aushev and others, in general, that what they say and do, their crimes are not lesser than those of the boeviks, who are in the woods”. “These people (human rights activists) confuse people with what they say, they betray them. But they will not betray people. They will not be able to. Truth and justice always win. Here we have our fighters, commanders, our men ask me, what these people (the human rights activists) want? I answer, that we don’t give a damn for these people”. “With God’s help, we will call all to account, who help evil. Everyone of them, be it a Chechen or an Ingush or someone else, must know, that they will be held responsible for their words...”

http://www.newsru.com/russia/13aug2009/adam.html.

It is important to note, that A. Delimkhanov concluded this speech with the following words:

Those, who fight against us with weapons in their hands or sympathize with them, or even just mentally support those devils, we will eliminate them by any means” (the Defendant has a videorecording of this speech, that will be presented to Court).

This way, A. Delimkhanov at first declares, that human rights activists are essentially accomplices of the terrorists (“the devils”), and in the end declares, that everyone, who “even mentally” supports the “devils” is to be eliminated.

Such public statements by officials create a situation in the Chechen Republic, in which even calling yourself a “human rights activist” is extremely dangerous.

Moreover, according to the media, R. Kadyrov announced the following: “Adam Delimkhanov is my close companion in arms, friend, brother and even more my “right hand”. And every statement towards him I see as if made towards myself” http://www.newsru.com/russia/06apr2009/kadyrov.html.

In this way, the statement that R. Kadyrov can be held accountable for the impossibility of accomplishing human rights work in the Chechen Republic (that he made such work impossible) corresponds to the facts.

5. Since May 5th 1998 the Russian Federation has been under the jurisprudence of the European Court for Human Rights. This means that as of this date Russia acknowledges the right of the European Court for Human Rights to examine individual applications against the Russian Federation on the violation of Human Rights, guaranteed by the European Convention on Human Rights and fundamental freedoms.

In this way any violation of the Human Rights guaranteed by the Convention can be subject to an application to the European Court for Human Rights.

This also grants the right to examine a civil case through the prism of violation of the mentioned international document and practice of the European Court for Human Rights.

The Russian Court, like the court of any country that is a member of the Council of Europe, is, in addition to being obliged to follow the internal laws of criminal procedures, also obliged to follow the above mentioned document, ratified by Russia, because, in accordance with Art. 4, Par. 15 of the Constitution of the Russian Federation, “...the norms of international law and the international treaties of the Russian Federation are a component part of its legal system”. Moreover, if these norms contradict the internal law, “the regulations of the international treaty have to be employed”.

The European Court has in its practice adopted a principle of heightened tolerance (in comparison to ordinary individuals) of the actions of public figures and the critiques against them.

Any politician, upon entering the political scene, must be prepared to get more attention than the average man does. The greatest part of the legal system of foreign countries directly forbids politicians, official persons, deputies or elected individuals from sueing the representatives of civil society for the protection of honour and dignity. It is assumed that the society has the right and even must know everything about the person, who influences the situation in the city, the district, the country.

The principle of heightened tolerance was consolidated in the European Court’s decisions in the case “Lingens against Austria” (1986). The given case had to do with the journalist Peter Michael Lingens, who published two articles in the Viennese journal “Profil”, criticizing the politician Friedrich Peter, chairman of the Austrian Liberal Party, who was in the SS brigade during the Second World War. Kreisky accused Lingens of defamation, and latter one was sentenced to a fine for the critique. Lingens applied to the European Court, which ascertained a violation of Art. 10 of the Convention:

41. In relation to that the Court is forced to remind, that the freedom of speech, as it is clarified in P. 1 of Art. 10, is one of the carrying support elements of the democratic society, a fundamental condition for its progress and the self-realization of everyone of its members. In observance of the requirements of P. 2 freedom of speech does not only include “information” or “ideas”, which are met favourable of seen as either inoffensive or neutral, but also those, who offend, shock or cause trouble. These are the requirements of pluralism, tolerance and liberalism, without which there is no “democratic society””.

Additionally, the decision states: “42. Freedom of press provides the society with one of the most perfect instruments, allowing to find out about and compile the view of ideas and positions of policitial leaders. In a more general way it can be said, that the freedom of the political discussion is compiled by the pivot of the democratic society’s conception, which goes through the whole Convention.

Respectively, the limits of allowable critique in relation to politicians are wider, than in relation to private individuals. In contrast to latter ones, politicians inevitably and consciously put forward their actions and behaviour under the intent control of journalists and the society, and therefore have to show a greater level of tolerance”.

Subsequently the European Court developed the principle of heightened tolerance. For example, in the decision on the case “Castells against Spain” the European Court ruled, that “the government has to have a higher level of tolerance, than politicians”.

In connection with the European Court’s approach, interference in the implementation of freedom of speech is, in cases like this, not “necessary in democratic societies....for the protection of the rights of other individuals”; it is out of proportion to the goal, pursued by the law, and in this connection is a violation of Art. 10 of the European Convention on Human Rights and fundamental freedoms.

According to the described approach of the European Court on critique against politicians, a satisfaction of the claim of R.A. Kadyrov would also bring about a violation of Art. 10 of the Convention.

On the grounds of the above stated, we believe that the statement of claim for the most part contains information and opinions,not having any relation to the Plaintiff’s claims about the protection of honour, dignity, official reputation and compensation for moral damage. In the Defendants’ opinion, the claims themselves are unfounded and not subject of satisfaction.

The Defendant O.P. Orlov

The Representatives A.G. Karetnikova

S.K. Davidis

The Advocate A.E. Stavitskaya


10.09.09