Professional Documents
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JUDGMENT
STRASBOURG
2 June 2016
This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.
PROCEDURE
1. The case originated in an application (no. 61561/08) against Ukraine
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by
Instytut Ekonomichnykh Reform TOV (the applicant company), on
8 December 2008.
2. The applicant company was represented by Ms G.G. Sovenko, a
lawyer practising in Zhovti Vody. The Ukrainian Government (the
Government) were represented most recently by their Acting Agent,
Ms O. Davydchuk, of the Ministry of Justice.
3. The applicant company alleged that its right to freedom of expression
had been breached.
4. On 2 March 2011 the application was communicated to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
5. The applicant company, Instytut Ekonomichnykh Reform (a limited
liability company), is the editorial body of the Evening News newspaper
( ), registered in Ukraine. According to the applicant
company, at the material time the newspaper was one of the top nationwide
although she does it for money, she does it with such devoted artistry that it made me
want to cry out, contrary to Stanislavsky: I believe you! Ms Ganna, I believe you!
I did almost believe her.
As a journalist and someone who knows Ganna personally, and someone who has
even learned from her (I learned from her how not to write), I have constantly tried to
put myself in her position.
I certainly understand, Ms Ganna, that its about the money ...
But it cant be that kind of money! A thousand, really? A thousand bucks? Or more?
I think any Ukrainian journalist would sell himself to Yanukovych for that much
money for a thousand bucks. I dont even know if I myself would be able to resist.
What would I say to my wife, to my friends? I would say: You dont know
Yanukovych. I know Victor Fyodorovich personally. I have talked with him a lot. He
is a great guy ...
What if I were given more than a thousand bucks a month? And [if I had an offer] to
become a member of parliament, as in Ganna Germans case? That is, for a flat in
Kyiv? I believe that all journalists dream of selling themselves for a flat in Kyiv, even
those who already have one. One does not have to do anything complicated for this.
One just has to say, with beautiful diction and intonation, that Yanukovych is a lost
sheep that has finally found the right path and constantly thanks God for it ...
...
I could also say those things. For a flat in Kyiv. And many other simple country
guys could say those things for a flat in Kyiv. The problem is, however, that
Yanukovich wouldnt give just anyone a flat in Kyiv. We dont have many stars, like
Ganna German, [whose worth is] that of a flat in Kyiv ( ,
, , ). By the way, for the cost of
an MPs flat one could maintain the editorial staff of a daily newspaper for five to ten
years (depending on what kind of flat it is). And each and every one of them would
write about what criminals and falsifiers the members of the Orange Party are and
what a wise, honest and principled man our Victor Fyodorovich is.
...
I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell
myself like that! That is of course the highest point in a journalists career. Not even
for a flat. At least ten thousand bucks, but all in one go. Alright, for five thousand.
Even three. Or for a monthly salary of eight hundred dollars. And I am wholly yours.
Or at least six hundred ... But no less than five hundred.
...
All of this is a joke. Pardon me for ... the irony. This is irony, although somebody
may consider it sarcasm. No, it isnt sarcasm.
According to [the] Ozhegov [dictionary], demagoguery is influencing the
feelings and instincts of those with low-level awareness on the basis of the deliberate
distortion of facts. For a long time I suffered from not being able to argue with such
demagogues as Ganna German, Taras Chornovil, Kinakh, and all the [members of the
Party of Regions] and communists. It is not possible to argue logically with them. An
intelligent man can hardly stay emotionally composed listening to them.
When I was on Shusters [television programme], [fellow guest] Zhvaniya gave me
a tip. Its irony. The thing is that demagoguery requires artistry. An intelligent man
can feel the falsity but cannot put his finger on it. At this point you need irony to make
the demagogues statements sound absurd ...
C. Defamation proceedings
10. On 18 July 2007 Ms German lodged a defamation claim with the
Kyiv Pecherskyy District Court against the applicant company and the
articles author. She sought a retraction in the form of the publication of a
court judgment in her favour of the allegedly false statements made in the
article concerning her alleged acquisition of a flat,. She also sought
compensation for non-pecuniary damage. The applicant company
maintained that the statements in question had constituted a value judgment
in respect of the legal provision entitling members of parliament to housing
support.
11. On 18 December 2007 the District Court allowed the plaintiffs
claims in part. It found that the following extracts constituted an untrue
statement:
And [if I had an offer] to become a member of parliament, as in Ganna Germans
case? That is, for a flat in Kyiv? ...
The problem is, however, that Yanukovych wouldnt give anyone a flat in Kyiv. We
dont have many stars, like Ganna German, [whose worth is] that of a flat in Kyiv.
12. The court found that the plaintiff had not requested or received a flat
in her capacity as a member of parliament; she had bought her own flat in
2001, before she had been elected. The court considered that the above
statements suggested that the plaintiff had become a member of parliament
for the sole purpose of obtaining a flat in Kyiv. In the courts view this was
not a value judgment because only concrete information as to whether
Ms German had exercised her entitlement to housing support could serve as
the basis for such statements. Rather, the statements in question constituted
statements of fact which had not been verified or proved by either of the
defendants, and were negative and insulting to the plaintiff.
13. Relying in particular on the provisions of the Civil Code and of the
Information Act and referring to the constitutional provision guaranteeing
respect for private life (see paragraphs 20 and 21 below), the court ordered
the applicant company to retract this information by publishing the
operative part of its judgment and to pay the plaintiff 1,700 Ukrainian
hryvnias (UAH, approximately 300 euros (EUR) at the time) in
compensation for non-pecuniary damage.
14. The court also found that the following extract constituted a value
judgment on the authors part and rejected the claim in this respect:
What if I were given more than a thousand bucks a month? ... I believe that all
journalists dream of selling themselves for a flat in Kyiv, even those who already have
one ... I listened to Ganna German and I wish I were as lucky as she is. I wish I could
sell myself like that!
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
28. The applicant company complained of a violation of its right to
freedom of expression under Article 10 of the Convention, which reads in
its relevant parts as follows:
1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society ... for the protection of the
reputation or rights of others ...
A. Admissibility
29. The Court notes that the application is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties submissions
30. The applicant company submitted that Evening News was a
newspaper dedicated to matters of society and politics. Its editorial board
supported the political views of Yuliya Tymoshenko. In addition to factual
information, the newspaper published diverse opinion pieces and polemical
articles. It was above all such opinion pieces and analytics which
distinguished the newspaper from other media outlets. The interference in
this case therefore went to the heart of the newspapers activities. The
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35. The Court observes that the interference in question had a basis in
the provisions of the Civil Code and of the Information Act (see
paragraphs 20 and 21 above).
36. The applicant company argued that the requirement imposed on it
to publish the operative part of the first-instance courts judgment (as
opposed to a specifically formulated retraction) contradicted section 37
of the Press Act. The Court observes that the applicant company did not
explain, either in its submissions before the domestic courts or before the
Court, why it believed this requirement had contradicted the Press Act.
37. The Court observes that it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law (see, for
example, Lehideux and Isorni v. France, 23 September 1998, 50, Reports
of Judgments and Decisions 1998-VII). In the absence of any detailed
submissions by the applicant company on this point, the Court is unable to
perceive anything in the case file or in the wording of the Press Act itself
which would indicate that the domestic courts interpretation of the relevant
provision was arbitrary or manifestly unreasonable. In this connection the
Court observes that the domestic courts interpretation of the Act was
consistent with resolutions of the Plenary Supreme Court of 1990 and 2009
(see paragraphs 26 and 27 above).
38. Having regard to its own case-law (see, for example, Markt Intern
Verlag GmbH and Klaus Beermann v. Germany, judgment of 20 November
1989, Series A no. 165, p. 18, 30, and Mller and Others v. Switzerland,
judgment of 24 May 1988, Series A no. 133 p. 20, 29), the Court
considers that the relevant provisions of the Civil Code and the Information
Act, as applied by the domestic courts in the present case, complied with the
requirements of foreseeability.
39. Moreover, the main thrust of the applicant companys submissions in
this respect, both before the domestic courts and this Court, appears to be
that the failure to formulate a specific retraction supported the applicant
companys argument that the statements the domestic courts found to be
untrue were in fact value judgments rather than statements of fact. This
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41. The Court agrees with the Governments submission, which was not
contested by the applicant, that the interference pursued the legitimate aim
of protecting the reputation and rights of others, namely Ms German.
(c) Necessary in a democratic society
(i) General principles
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10 and, moreover, that they relied on an acceptable assessment of the relevant facts
...
43. The Court also reiterates that the press fulfills an essential function in
a democratic society. Although the press must not overstep certain bounds
regarding in particular the protection of the reputation and rights of others,
its duty is nevertheless to impart in a manner consistent with its
obligations and responsibilities information and ideas on all matters of
public interest. Not only does the press have the task of imparting such
information and ideas; the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of public
watchdog (see Axel Springer AG v. Germany (no. 2), no. 48311/10, 55,
10 July 2014, with further references). Freedom of expression is applicable
not only to information or ideas that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb the State or any section of the community.
Journalistic freedom also covers possible recourse to a degree of
exaggeration, or even provocation (see Prager and Oberschlick v. Austria,
26 April 1995, 38, Series A no. 313).
44. Moreover, as regards the level of protection, there is little scope
under Article 10 2 of the Convention for restrictions on political speech or
debate on matters of public interest (see Srek v. Turkey (no. 1) [GC],
no. 26682/95, 61, ECHR 1999-IV). Accordingly, a high level of
protection of freedom of expression, with the authorities thus having a
particularly narrow margin of appreciation, will normally be accorded
where the remarks concern a matter of public interest (see Morice v. France
[GC], no. 29369/10, 125, 23 April 2015). Moreover, the limits of
acceptable criticism are wider in respect of a politician than a private
individual. Unlike the latter, the former inevitably and knowingly lays
himself open to close scrutiny of his words and deeds by journalists and the
public at large, and he must consequently display a greater degree of
tolerance. A politician is certainly entitled to have his reputation protected,
even when he is not acting in his private capacity, but in such cases the
requirements of that protection have to be weighed against the interests of
the open discussion of political issues (see Lingens v. Austria, 8 July 1986,
42, Series A no. 103).
45. Furthermore, the Court in its case-law draws a distinction between
statements of fact and value judgments. The existence of facts can be
demonstrated, whereas the truth of value judgments is not susceptible of
proof. The requirement to prove the truth of a value judgment is impossible
to fulfil and infringes freedom of opinion itself, which is a fundamental part
of the right secured by Article 10 (see Lingens, cited above, 46). However,
where a statement amounts to a value judgment, the proportionality of an
interference may depend on whether there exists a sufficient factual basis
for the impugned statement, failing which it will be excessive (see Lindon,
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Morice, cited above, 125, and Kharlamov v. Russia, no. 27447/07, 33,
8 October 2015).
51. As to the content of the impugned statements, the Court notes that
the first-instance court, whose reasoning was upheld without discussion by
the superior courts, considered that two sentences in the impugned article,
taken together, constituted a statement of fact, namely: And [if I had an
offer] to become a member of parliament, as in Ganna Germans case? That
is, for a flat in Kyiv? and The problem is, however, that Yanukovych
wouldnt give anyone a flat in Kyiv. We dont have many stars, like Ganna
German, [whose worth is] that of a flat in Kyiv.
52. The domestic courts found that these statements constituted an
affirmation that Ms German had become a member of parliament with the
sole purpose of obtaining a flat in Kyiv. They also concluded that these
statements could not be considered value judgments because the only
possible basis for them could be the actual information as to whether or not
Ms German claimed housing support in her capacity as a member of
parliament. The domestic courts established and this was never challenged
by the applicant company or the author that Ms German had never
claimed her entitlement to housing support and that neither the author nor
the applicant company had ever attempted to verify whether she had. On
this basis, the domestic courts concluded that the statement in question was
untrue.
53. The Court notes with satisfaction that the domestic courts
endeavored to distinguish between statements of fact and value judgments
in the impugned article. However, particularly in view of the limited scope
of their reasoning in this respect, the Court is unconvinced by their approach
and cannot share their conclusion for two reasons.
54. Firstly, the Court observes that the domestic courts failed to
comment on the satirical tone of the impugned statements (compare
Standard Verlags GmbH v. Austria, no. 13071/03, 51, 2 November 2006,
and Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, 25,
22 February 2007). Moreover, it appears that no consideration was given to
the structure of the article as a whole, most notably the authors explicit
reference to his statements being jokes, ironic or sarcastic. In fact, the
entire closing part of the article was dedicated to explaining the exaggerated
nature of its first part, which included in particular the statements found to
be untrue and defamatory. However, the domestic courts appear to have
taken these statements in isolation, removed from this context (compare, for
example, Dichand and Others v. Austria, no. 29271/95, 46, 26 February
2002).
55. Secondly, the domestic courts did not comment on the overall
context of the public debate in which the statements had been made and
their subject matter (compare Scharsach and News Verlagsgesellschaft
v. Austria, no. 39394/98, 38, ECHR 2003-XI). In this context it reiterates
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interference was not based on sufficient reasons and concludes that the
necessity of the interference with the exercise of the applicant companys
freedom of expression has not been shown.
67. There has, accordingly, been a violation of Article 10 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
68. Article 41 of the Convention provides:
If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.
A. Damage
69. The applicant company claimed EUR 1,000,000 in respect of
pecuniary and non-pecuniary damage in its own name. It based the claim in
part on the decline in the circulation of the Evening News newspaper
between 2008 and 2011. In addition, the applicant company also submitted
a claim for EUR 2,000,000 for pecuniary and non-pecuniary damage on
behalf of the author of the impugned article, Mr Tkalenko.
70. The Government contested these claims.
71. The Court rejects the claim submitted in respect of Mr Tkalenko as
he is not an applicant in the present case. It also observes that the applicant
company, in its claim, did not make any distinction between pecuniary and
non-pecuniary damage. To the extent that the applicant companys claim
concerned pecuniary damage, the Court does not discern any causal link
between the violation found and the pecuniary damage alleged. On the other
hand, ruling on an equitable basis, the Court awards the applicant company
EUR 4,500 in respect of non-pecuniary damage.
B. Costs and expenses
72. The applicant company made no claim in respect of costs and
expenses. Therefore, the Court makes no award under this head.
C. Default interest
73. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
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Claudia Westerdiek
Registrar
Angelika Nuberger
President