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FIFTH SECTION

CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOV


v. UKRAINE
(Application no. 61561/08)

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.

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

In the case of Instytut Ekonomichnykh Reform, TOV v. Ukraine,


The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Angelika Nuberger, President,
Ganna Yudkivska,
Khanlar Hajiyev,
Andr Potocki,
Yonko Grozev,
Sofra OLeary,
Mrti Mits, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 26 April 2016,
Delivers the following judgment, which was adopted on that date:

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

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

dailies in Ukraine by circulation and was closely associated with Ms Yuliya


Tymoshenko, a political leader.
6. In the 1990s Ms Ganna German worked as a newspaper journalist in
Lviv. In the early 2000s she headed the Kyiv bureau of Radio Free
Europe/Radio Liberty. In 2004 she became a spokesperson for the thenPrime Minister, Victor Yanukovych, a move which was widely perceived as
constituting a significant change of sides in the political debate on
Ms Germans part. In May 2006 she was elected as a member of parliament
on the list of the Party of Regions, led by Mr Yanukovych. At the material
time she frequently presented her partys and Mr Yanukovychs views on
various television and radio programmes and debates.
7. On 2 April 2007 the President of Ukraine issued a decree dissolving
Parliament. This decree led to an acute constitutional crisis, with the
parliamentary majority, grouped around the Party of Regions, initially
refusing to comply with the decree. Fresh parliamentary elections were
originally scheduled for 27 May 2007 but were postponed; they eventually
took place on 30 September 2007. Political parties led by Mr Yanukovych
and Ms Tymoshenko won the largest numbers of votes.
B. Impugned article
8. On 21 May 2007 Evening News published an article entitled How I
became a victim of demagogues ( )
written by Mr I. Tkalenko (the author).
9. The relevant extracts from the article read as follows:
On Friday evening Yuliya Tymoshenko almost lost one of her fans ... I am
embarrassed to admit that I almost went over to Yanukovychs side ...
And its Ganna Germans fault. She was talking live on BBC radio and she almost
persuaded me. She said that they had eleven million supporters in Ukraine and that the
party numbered one million members. I was dumbfounded!
And of course I was impressed by her eloquence. How beautifully she speaks, what
a well-trained voice and proper intonation she has. She uses not only words but
intonation, communicating non-verbally as well ... Of course, she is such a
professional ...
I thought that after her speech another five hundred thousand would join the Party of
Regions. I used to think that one could easily debate with Ganna German. I put myself
in Ganna Germans position and it seemed that she must be feeling very
uncomfortable.
I thoughtlessly believed that the question Ms Ganna, what are you doing in this
gang? should make her blush and lower her gaze. She, a nationalist, should be
ashamed to belong to this group of Ukraine haters (
).
Ms Ganna dropped hints about not being a rich person, which means that money
was evidently not the least motivation for her decision to work for Yanukovych. And

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

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

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

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!

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

15. The applicant company appealed, arguing, in particular, that the


statement in question had been an expression of the authors opinion. In
particular, he had wondered what could have induced Ms German, a
former nationalist, to change her political sympathies. Being aware that the
Member of Parliaments Status Act provided for housing support, the author
speculated that he might be willing to change his views in exchange for a
flat in Kyiv. For the applicant company, the lack of coherence in the
plaintiffs demand that a subjective opinion be retracted was illustrated by
the fact that the plaintiff and the first-instance court had been unable to
formulate a specific statement of retraction and had resorted to the
requirement to publish the text of the judgment itself. For the applicant
company, the plaintiffs failure to formulate a specific retraction illustrated
the rationale behind section 47-1 of the Information Act, under which value
judgments were not subject to retraction. The applicant company argued
that the requirement to retract the statement by publishing the text of the
court judgment contradicted section 37 of the Press Act. The applicant
company also argued that the author had not had the requisite intent to
disseminate untrue information. In support of its arguments it invoked the
constitutional provision guaranteeing the freedom of expression.
16. On 28 February 2008 the Kyiv City Court of Appeal upheld the
judgment of 18 December 2007, finding the applicant companys arguments
unsubstantiated and the District Courts conclusions correct.
17. The applicant company appealed on points of law. In addition to
reiterating the arguments it had raised on appeal, it referred to the Courts
judgments in Ukrainian Media Group v. Ukraine (no. 72713/01, 29 March
2005), and De Haes and Gijsels v. Belgium (24 February 1997, Reports of
Judgments and Decisions 1997-I), arguing that according to the Courts
case-law the limits of acceptable criticism were wider with regard to a
politician than in relation to a private individual and that such criticism
could include recourse to a degree of exaggeration, or even provocation.
18. On 23 May 2008 the Supreme Court found no grounds to review the
case on points of law, finding that there were no reasons to believe that the
lower courts decisions had breached any provisions of substantive or
procedural law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine
19. Articles 32 and 34 of the Constitution provide as follows:
Article 32
There shall be no interference with private and family life, unless as provided by
the Constitution of Ukraine.

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Confidential information about a person shall not be collected, stored, used or


disseminated without the persons consent, unless in so far as provided by law in the
interests of national security, economic well-being and human rights.
...
Everyone shall be guaranteed judicial protection of the right to rectify untrue
information about himself or herself and members of his or her family, and of the
right to demand that any type of information be rectified, and also the right to
compensation for pecuniary and non-pecuniary damage inflicted by the collection,
storage, use and dissemination of such incorrect information.
Article 34
Everyone shall be guaranteed the right to freedom of thought and speech, and to
the free expression of his or her views and beliefs.
...
The exercise of these rights may be restricted by law in the interests of national
security, territorial indivisibility or public order, with the purpose of preventing
disturbances or crime, protecting public health, the reputation or rights of others,
prevention of the publication of information received confidentially, or maintaining
the authority and impartiality of the judiciary.

B. Civil Code of 16 January 2003


20. Article 277 and 1167 of the Code provide:
Article 277
Retraction of untrue information
1. An individual whose non-pecuniary rights have been infringed as a result of the
dissemination of untrue information about him or her and (or) members of his or her
family shall have the right to reply and [the right to] the retraction of that information
...
...
6. An individual whose non-pecuniary rights have been infringed in printed or other
mass media shall have the right to reply to, and also [the right to] the retraction of,
untrue information in the same mass media, in the manner envisaged by law ...
Untrue information shall be retracted, irrespective of the guilt of the person who
disseminated it.
7. Untrue information shall be retracted in the same manner as that in which it was
disseminated.
Article 1167
Grounds of Responsibility for Non-Pecuniary Damage
1. Non-pecuniary damage caused to an individual or legal person by illegal
decisions, acts or inaction shall be compensated by the person who caused it, if that
person [has the requisite state of mind for a civil tort]. ...

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

C. Information Act of 2 October 1992


21. Sections 47 and 47-1 of the Act provide as follows:
Section 47. Liability for infringement of the legislation on information
...
Liability for infringement of the legislation on information shall be borne by persons
responsible for the following infringements:
...
dissemination of information that does not correspond to reality, that defames the
honour and dignity of a person ...
Section 47-1. Indemnity from liability
No one may be held liable for making value judgments.
Value judgments, excluding insults and libel, are statements which do not contain
factual data, in particular, criticism, evaluation of actions, and also statements which
cannot be said to contain factual data because of the way they are worded, in
particular, [by means of] hyperbole, allegory, or satire. Value judgments are not
subject to retraction and their truthfulness need not be proved ...

D. Press Act of 16 November 1992


22. Section 37 of the Act provides as follows:
Section 37. Retraction of information
Citizens, legal entities and State organs, and their legal representatives, shall have
the right to demand that the editorial board of [a publication] publish a retraction of
information disseminated about them which does not correspond to reality or defames
their honour and dignity.
If the editorial board does not have any evidence that the content published by it is
accurate, it must, if requested by the claimant, publish a retraction of such information
in [its] next issue ... or publish such a retraction on its own initiative.
The retraction shall be printed in the same font and should be inserted under the
heading Retraction in the same column where the information being retracted was
published.
...

E. Member of Parliaments Status Act of 17 November 1992


23. Under Section 35 of the Act, as worded at the material time, a
member of parliament, regardless of his place of residence, had to be
provided with proper housing. To this end the member could be provided
with a lump sum allowance covering the cost of a dwelling in Kyiv, a
dwelling made available for his term of office, or a permanent dwelling. The

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

cost was to be financed from Parliaments budgetary appropriations. To


claim the entitlement, a newly elected or re-elected member had to submit
an application with the relevant parliamentary committee within three
months of commencing his or her functions.
24. Sections 20, 30, 31 and 33 of the Act also provided for a number of
other entitlements for members of parliament, including State-financed
disability, life insurance and medical care, monthly pay at the level of
ministers, severance allowance on leaving the office, increased pension, the
costs of continuing education, and travel and recreational expenses.
F. State Support of Mass Media and Social Protection of Journalists
Act of 23 September 1997
25. The Act provides in the relevant parts as follows:
Section 17. Liability for trespass or other actions against the life and health of a
journalist and a journalists liability for non-pecuniary damage caused by him
In the process of consideration by a court of a dispute concerning non-pecuniary
damage between a journalist or other [mass media professional], as the defendant, and
a political party, electoral bloc, [or] an office holder (or office holders), as the
plaintiff, a court may award compensation in respect of non-pecuniary damage only if
the journalist or media professional [acted] with intent. The court shall take into
account the outcome of the use by the claimant of extrajudicial and in particular
pre-trial opportunities to obtain a retraction of the untrue material, defend his
honour, dignity and reputation, and settle the dispute. Having regard to the
circumstances, the court may refuse [to award] compensation in respect of
non-pecuniary damage.
The intent of the journalist and/or official of the media organisation means his or
their stance in regard to the dissemination of information when the journalist and/or
official of the media organisation are aware of the untruthfulness ()
of such information and have anticipated its socially injurious consequences.
The journalist and/or [mass media professional] shall be released from liability for
the dissemination of information that does not correspond to reality if the court
establishes that the journalist acted in good faith and checked the information.

G. Resolution no. 7 of the Plenary Supreme Court of 28 September


1990 on judicial practice in defamation cases (repealed on
27 February 2009)
26. Under paragraph 9 of the Resolution, when ordering a retraction on
radio or television, a court could require an announcer to read the operative
part of the judgment during the same programme or series of programmes
and at the same hour. It was unacceptable for media organisations to edit the
text of the judgment or to comment on it in a way that would amount to a
challenge of the judgment.

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H. Resolution no. 1 of the Plenary Supreme Court of 27 February


2009 on judicial practice in defamation cases
27. Under paragraph 24 of the Resolution, if a court adopts a judgment
ordering the retraction of disseminated information, it may, if necessary, set
forth in the judgment the wording of that retraction or indicate that the
retraction shall be carried out by means of notifying the parties to the
dispute and third parties of the judgment, including by the publishing of its
text.

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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domestic courts had obliged the applicant company to retract a statement


which had been a value judgment rather than a statement of fact. According
to the applicant company, this was evidenced by the satirical form of the
article and the linguistic tools notably hyperbole and allegory used in it.
The impugned paragraphs in the article had been merely an expression of
the authors wondering about the motives which had led Ms German, a
former Ukrainian nationalist, to change her political opinions. The author
had not had the requisite intent of spreading false information about
Ms German. The applicant company also submitted that the requirement to
publish the text of the domestic courts judgment instead of a retraction
had been contrary to Section 37 of the Press Act.
31. The Government agreed that the judgments of the domestic courts
had constituted an interference with the applicant companys freedom of
expression. However, they considered that the interference had been
prescribed by law, being based on the relevant provisions of the Civil Code
and the Information Act. It had pursued the legitimate aim of protecting the
reputation or rights of others.
32. As to the necessity of the interference, the Government submitted
that the domestic courts had carefully analysed the context of the authors
statements, finding that only one paragraph in his article had contained a
statement of fact and that the other paragraphs about which the plaintiff had
complained had contained value judgments. According to the findings of the
domestic courts, that paragraph contained the assertion that Ms German had
become a member of parliament in order to obtain a flat in Kyiv. The
domestic courts had found this to be untrue. The Government referred to the
Courts judgment in Lindon, Otchakovsky-Laurens and July v. France
([GC], nos. 21279/02 and 36448/02, 57, ECHR 2007-IV), according to
which regardless of the forcefulness of political struggles, it is legitimate to
try to ensure that they abide by a minimum degree of moderation and
propriety, especially as the reputation of a politician, even a controversial
one, must benefit from the protection afforded by the Convention. The
Government also referred to the Courts decision in Vitrenko and Others
v. Ukraine (no. 23510/02, 16 December 2008), which, according to the
Government, supported the principle that even during an election campaign
an individual could not be subjected to unfair accusations by his opponent.
The applicant company had submitted its arguments to the Court of Appeal
and the Supreme Court, which had rejected them. In such circumstances, it
was not the Courts task to review their findings as a court of fourth
instance.
33. The Government also submitted that the interference had been
proportionate and had not put an undue burden on the applicant company.
The domestic courts decisions were part of the States compliance with its
positive obligation to ensure that those subjected to defamation had a
reasonable opportunity to reply.

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2. The Courts assessment


34. The Court finds, and this is not in dispute between the parties, that
the domestic courts decisions constituted an interference with the applicant
companys right to freedom of expression. Such interference will breach the
Convention if it fails to satisfy the criteria set out in paragraph 2 of
Article 10. The Court must therefore determine whether it was prescribed
by law, whether it pursued one or more of the legitimate aims listed in that
paragraph and whether it was necessary in a democratic society in order
to achieve that aim or aims.
(a) Prescribed by law

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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argument concerns the issue of whether the interference was necessary in a


democratic society (see, mutatis mutandis, Ukrainian Media Group, cited
above, 50, and Gazeta Ukraina-Tsentr v. Ukraine, no. 16695/04, 48,
15 July 2010).
40. In the light of these considerations, the Court considers that the
interference was prescribed by law within the meaning of Article 10 2 of
the Convention.
(b) Legitimate aim

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

42. The fundamental principles concerning the question of whether an


interference with freedom of expression is necessary in a democratic
society are well established in the Courts case-law and have recently been
summarised as follows (see Delfi AS v. Estonia [GC], no. 64569/09, 131,
16 June 2015, with further references):
(i) Freedom of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and for each
individuals self-fulfillment. Subject to paragraph 2 of Article 10, it 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. Such are
the demands of pluralism, tolerance and broadmindedness without which there is no
democratic society. As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any restrictions must
be established convincingly ...
(ii) The adjective necessary, within the meaning of Article 10 2, implies the
existence of a pressing social need. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a restriction is reconcilable with freedom of expression
as protected by Article 10.
(iii) The Courts task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the Court has to do is to
look at the interference complained of in the light of the case as a whole and
determine whether it was proportionate to the legitimate aim pursued and whether
the reasons adduced by the national authorities to justify it are relevant and
sufficient... In doing so, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied in Article

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13

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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INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

Otchakovsky-Laurens and July, cited above, 55). In order to distinguish


between a factual allegation and a value judgment it is necessary to take
account of the circumstances of the case and the general tone of the remarks
(see Brasilier v. France, no. 71343/01, 37, 11 April 2006), bearing in
mind that assertions about matters of public interest may, on that basis,
constitute value judgments rather than statements of fact (see Paturel v.
France, no. 54968/00, 37, 22 December 2005).
46. Satire is a form of artistic expression and social commentary and, by
its inherent features of exaggeration and distortion of reality, naturally aims
to provoke and agitate. Accordingly, any interference with an artists or
social commentators right to such expression must be examined with
particular care (see Vereinigung Bildender Knstler v. Austria,
no. 68354/01, 33, 25 January 2007; Alves da Silva v. Portugal, no.
41665/07, 27, 20 October 2009; and Welsh and Silva Canha v. Portugal,
no. 16812/11, 29 and 30, 17 September 2013) even though the use of this
form of expression does not rule out any possibility of restriction under
paragraph 2 of Article 10 of the Convention (see Leroy v. France,
no. 36109/03, 39 and 44, 2 October 2008).
(ii) Application of the above principles to the present case

47. The Court reiterates that, in the context of Article 10 of the


Convention, it must take account of the circumstances and overall
background against which the statements in question were made (see, for
example, Morice, cited above, 162).
48. The Court observes that at the relevant time the struggle between
Yulia Tymoshenko and Victor Yanukovych and their allies was an
important feature of Ukrainian political life. This struggle was particularly
acute in the context of the Presidents decision regarding whether to
dissolve Parliament and preparations for the fresh parliamentary elections
that would follow. The applicant company and its editorial policy, by its
own admission, was aligned with Ms Tymoshenko. Ms German was, by
contrast, one of the main spokespeople for Mr Yanukovych and his Party of
Regions. In this capacity she frequently made comments on current affairs
in a variety of media, including live radio and television shows. The
impugned article constituted the sarcastic reaction of its author, a
self-proclaimed partisan of Ms Tymoshenko, to Ms Germans participation
in a BBC radio programme, during which she had commented on the
popularity of her party.
49. In these circumstances the Court considers that the subject matter of
the impugned article, namely the authors speculation as to Ms Germans
motives for making her statements and supporting the Party of Regions, was
of significant public interest.
50. Accordingly, the authorities had a particularly narrow margin of
appreciation in assessing the need for the interference (see, for example,

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

15

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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INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

that in some cases it has characterised statements concerning motives and


biases as value judgments (see, for example, Paturel, cited above, 10
and 37, and Lyashko v. Ukraine, no. 21040/02, 50, 10 August 2006).
Moreover, assertions about matters of public interest may, on that basis,
constitute value judgments rather than statements of fact (see, for example,
Paturel, cited above, 37, and Scharsach and News Verlagsgesellschaft,
cited above, 38).
56. In the Courts view, the impugned statements in the present case also
constituted comments on the question of motivation, were made in the
context of a highly charged political debate, and concerned matters of public
interest. The Court also considers relevant other factors not considered by
the domestic courts such as the hypothetical grammatical forms and the
satirical tone employed by the author, who also stressed explicitly that his
statements were to be seen as ironic. In view of the said nature of the
impugned statements, the Court considers that they are to be viewed, in the
context of the impugned article as a whole, as value judgments rather than
pure statements of fact (compare Brasilier, cited above, 37, and Morice,
cited above, 156).
57. The Court reiterates, however, that even a value judgment without
any factual basis to support it may be excessive and that the relevant test is
whether a sufficiently accurate and reliable factual basis proportionate to the
nature and degree of the allegation can be established (see, for example,
Jerusalem v. Austria, no. 26958/95, 43, ECHR 2001-II).
58. In this respect the Court observes that the impugned statements were
not particularly serious in tone. They were also not particularly damaging in
substance, given that the author did not accuse Ms German of specific
illegal or immoral conduct, even though he ascribed less than admirable
motives to her. Read in the context of a highly charged political debate and
in the context of the article as a whole, the expressions found untrue by the
domestic courts were supposed to illustrate the authors opinion that
Ms German was insincere and guided by considerations of material gain in
expressing her political opinions, and in particular changing her perceived
political sympathies from those for Ukrainian nationalism to those for
Mr Yanukovych and his party, which was perceived by the author to be an
anti-Ukrainian organisation or, in the authors words, a group of Ukraine
haters.
59. It would appear that the authors intention was not to affirm that
Ms German really claimed housing support but rather that membership of
Parliament had motivated her since it brought with it, broadly speaking,
financial rewards.
60. This implies, in turn, that, in the context of the article and in view of
its satirical tone, a flat in Kyiv was meant to epitomise all the various
financial benefits associated with being a member of parliament (see
paragraph 24 above).

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

17

61. Therefore, the provisions of domestic law entitling members of


parliament to housing support and various other benefits provided some
factual basis for the statements in question, exaggerated and provocative
though they were. In the Courts view, this factual support was sufficient in
view of the context, the tone and therefore of the nature and degree of the
seriousness of the impugned statements.
62. It is therefore true that the author imputed unworthy motives to the
subject of the article in highly sarcastic language (compare Amihalachioaie
v. Moldova, no. 60115/00, 52, ECHR 2004-III). However, it must be
remembered that Article 10 also protects information and ideas that offend,
shock or disturb. In addition, it is an important principle established in the
Courts case-law that journalistic freedom covers possible recourse to a
degree of exaggeration, or even provocation (see Prager and Oberschlick,
cited above, 38).
63. The domestic courts failed to explain why, despite the impugned
articles contribution to a debate of public interest and its subjects role as a
prominent politician and the essential role played by the press in a
democratic society, they considered that the authors statements, satirical in
tone as they were, went beyond the permissible level of exaggeration or
provocation.
64. The Court concludes that the domestic courts failed to (i) recognise
sufficiently that the present case involves a conflict between freedom of
expression and the protection of a persons reputation and (ii) conduct a
sufficiently careful balancing exercise between them on the basis of the
criteria laid down in the Courts case-law (compare Reznik v. Russia,
no. 4977/05, 43, 4 April 2013, and Niskasaari and Otavamedia Oy
v. Finland, no. 32297/10, 58, 23 June 2015).
65. While the sanction imposed on the applicant company was relatively
modest, it nevertheless had symbolic value and it cannot be ruled out that it
could still have a chilling effect on the applicant company and other
participants in the public debate (compare Reznik, 50, and
Amihalachioaie, 38, both cited above). In any event, the sanction was not
justified in the light of the considerations set out above.
66. Therefore, while the Court is satisfied that the Ukrainian courts have
taken up important elements of its case-law on Articles 8 and 10 of the
Convention, namely the distinction between value judgments and statements
of fact, and have focused only on the most controversial parts of the
impugned publication, it is still not convinced that the balancing exercise
has been undertaken by the national authorities in conformity with all the
criteria laid down in its case-law (see, a contrario, Lillo-Stenberg and
Sther v. Norway, no. 13258/09, 44, 16 January 2014, and Von Hannover
v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, 107, ECHR 2012).
In light of the limited scope of the domestic courts reasoning and the
States narrow margin of appreciation in this field it therefore holds that the

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INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

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.

INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT

19

FOR THESE REASONS, THE COURT, UNANIMOUSLY,


1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant company, within
three months from the date on which the judgment becomes final in
accordance with Article 44 2 of the Convention, EUR 4,500 (four
thousand five hundred euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into the currency of
the respondent State at the rate applicable at the date of settlement:
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
4. Dismisses the remainder of the applicant companys claim for just
satisfaction.
Done in English, and notified in writing on 2 June 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Claudia Westerdiek
Registrar

Angelika Nuberger
President

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