FIFTH SECTION
DECISION
Application no. 54574/10
Larysa Viktorivna ARTEMENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 May 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 9 September 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Larysa Viktorivna Artemenko, is a Ukrainian national. She is a journalist and lives in Kremenchuk. She was represented before the Court by Ms L.L. Pankratova, a lawyer practising in Kyiv.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 16 April 2009 the applicant published in the Kremenchuk Telegraph (Кременчуцький телеграф) newspaper an article entitled One‑Year Anniversary of the Battle for the Stadium (Роковини битви за стадіон). It discussed stadium infrastructure in the city of Kremenchuk and mentioned the name of Mr B., at the time Member of Parliament and honorary president of the local football club, Kremin. The article read:
“A year ago, in March/April 2008, a grand battle for the Polytechnic Stadium began in Kremenchuk; the stadium is fully owned by the Kremenchuk State Polytechnic University. A group of Kremenchuk businessmen politicians and football enthusiasts, headed by MP B., demanded that the stadium be leased to private entities. MP B. even spoke at the City Council meeting. He demanded that the university hand the stadium over for lease to commercial entities and promised to find 12 million to renovate it according to European standards...
[There followed a one-paragraph discussion of the fact that the university’s stadium was owned by the State and, therefore, the university could not make the decision to rent it out.]
As soon as it turned out that it would be impossible to take away the stadium under the pretext of renovation, businessmen politicians immediately lost interest in the issue. MP B. once again spoke at the City Council session, now promising to help the university renovate the stadium free of charge (безкорисливо). The MP swore personally to visit the office of each Kremenchuk businessman, to raise money for repairs and build a decent stadium for Kremenchuk students. One day, the opposing parties even sat down to negotiate. The city was represented by the mayor, the university by its president and the politicians, businessmen and football players by the MP. The parties agreed to conclude a mutual assistance agreement between the city, the university and Kremin football club. It was assumed that the deal would help find funds for a quality renovation of the old (1962) stadium – without its transfer to the third parties and appropriation.
One year has passed. The agreement has still not been signed. And it seems nobody is interested in it anymore. MP B. has received a new toy - almost his own stadium in the city park (отримав новеньку іграшку – майже власний футбольний стадіон у межах Міського саду). It will serve the needs of the municipal Kremin football club, the honorary president of which is the MP. Mr B. managed to ensure that the city authorities allocate one million hryvnias from the city budget for the construction. The MP no longer mentions Kremenchuk students. And the city authorities have never worried about students’ problems. The university does repairs to the stadium at its own expense, little by little. [There followed several sentences describing the amounts spent by the university and the repairs it did on its stadium, in particular to make it comply with the requirements for the Ukrainian second division matches. According to the author, those matches could not be conducted at the city park stadium as it had artificial turf].
So here is the situation. It is not particularly joyful. The university took into account the interests of the city and its footballers and is spending money on that. And what has the city and its authorities done for the students of Kremenchuk so that they are able to do their physical education in normal conditions? Nothing. They just talked and went their ways.”
5. B. lodged a claim in defamation against the applicant and the newspaper seeking retraction of the underlined statement, which, he considered, communicated the information that he was the owner of the stadium in the city park, which was wrong. He claimed 1,000 Ukrainian hryvnias (UAH) (around 80 euros (EUR) at the material time) in damages, which he would donate to an orphanage. He submitted that he was indeed the honorary president of Kremin FC, which was owned by the city of Kremenchuk and had the status of a municipal establishment (комунальний заклад). The work on the stadium in the city park had been ordered by the city council which had allocated municipal land for the project. In April 2008 the city’s executive committee designated Kremin FC as the promoter (замовник) of the project. The construction would be financed from the city budget and from private donations, including those of the plaintiff himself. However, the plaintiff had no ownership stake and no personal interest in the stadium, his only motivation for his involvement in the project was the desire to help the city create a modern sports facility.
6. In response, the applicant argued that the negative information the plaintiff considered disseminated, namely that he was the owner of the stadium, was not in the article and was merely the plaintiff’s subjective reading of it. The impugned statement was a value judgment. The article did not use the word “ownership” and instead used metaphors such as “new toy” and “almost his own”. The use of the word “almost” communicated the idea that the applicant did not mean to refer to property in the legal sense. All that the author communicated to the readers by those words was that the plaintiff was connected with the football club and had influence over it. The overall context of the article, to which the plaintiff did not object, made that clear. The applicant made the above submissions at a public hearing and they were summarised in the first-instance court’s judgment.
7. On 14 October 2009 the Kremenchuk Kriukivsky District Court allowed the claim in part and declared the impugned statement untruthful:
(i) the court considered that the impugned statement was a statement of fact as it referred to a specific facility, the stadium, specific place, the city park, and a specific person, the plaintiff. The plaintiff’s activity in connection with the stadium development project were unrelated to his duties as an MP and concerned his personal hobby, his desire to resolve the problem faced by the football club of which he was the honorary president: the club could not participate in professional matches because it lacked its own stadium;
(ii) the court attached key importance to the word “received” set out in bold in the judgment: it considered that, by saying that the plaintiff had “received” the stadium, the author put in doubt the legitimacy of the plaintiff’s implication in the development of the stadium and, therefore, denigrated his honour and dignity, by indicating that he had a personal interest in obtaining the stadium as his property in the future;
(iii) the defendants had failed to submit proof that, at the time of publication, they had had reliable information that the plaintiff had received the stadium in ownership. Therefore, this negative information published by the defendants was untruthful;
(iv) the court rejected the claim for damages and ordered the defendants to pay, jointly and severally, only the court fees, 81 Ukrainian hryvnias (about 6 euros at the time);
(v) the court ordered the defendants to publish a retraction worded as follows: “Information disseminated in the [litigious article] which stated that “MP B. has received a new toy - almost his own stadium in the city park” is untruthful and is not based on true facts. [The newspaper] has no information that MP B. O.M. received in full or partial ownership the stadium in the city park”;
(vi) among other legislative provisions, the court invoked constitutional provision guaranteeing freedom of expression and the Civil Code provisions protecting reputation (see the reference in paragraph 10 below).
8. On 16 December 2009 the Poltava Regional Court of Appeal, following a public hearing, rejected the applicant’s and the newspaper’s appeals and upheld the first-instance court’s judgment. The Court of Appeal noted that, because Kremin FC was municipally owned and it was that club which was the developer of the stadium and the user of the municipally-owned land where it was built, the information in the impugned article that the plaintiff was connected to the ownership of the stadium was incorrect. The first-instance court’s conclusion that the impugned statement was a statement of fact was correct, as it concerned a specific facility, place, person and time.
9. On 9 March 2010 a judge of the Supreme Court refused the applicant leave to appeal on points of law, holding that there was no indication of error in the lower courts’ decisions.
B. Relevant domestic law
10. Relevant provisions of the Constitution concerning freedom of expression and of the Civil Code concerning the protection of reputation can be found in Lykin v. Ukraine (no. 19382/08, §§ 15 and 16, 12 January 2017).
COMPLAINT
11. The applicant complained under Article 10 of the Convention that the domestic courts’ decisions in her case constituted a violation of her right to freedoms of expression.
THE LAW
12. The applicant complained of a violation of her right to freedom of expression, guaranteed by Article 10 of the Convention, which reads:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. The parties’ submissions
1. The Government
13. The Government agreed that the decisions of the domestic courts had constituted an interference with the applicant’s right to freedom of expression. However, it had been lawful and pursued the legitimate aim of plaintiff’s honour and dignity. The domestic courts at two levels of jurisdiction, having thoroughly examined the case, considered that the statement in questions constituted a statement of fact. That finding was not unreasonable and fell into the domestic courts’ margin of appreciation. In the domestic proceedings the applicant had failed to submit any evidence confirming the veracity of her statement. It had to be taken into account that the domestic courts had awarded no damages. The interference, therefore, had been mild, could not be seen as punitive, burdensome so as to discourage the applicant from contributing to the public debate in the future.
2. The applicant
14. The applicant conceded that the interference with her right to freedom of expression was prescribed by law and pursued a legitimate aim. However, it had not been necessary in a democratic society.
15. The article had concerned a matter of public interest, which had attracted considerable attention in the local press, and a public figure, then an MP and later the city mayor, focussing solely on his activities in his public capacity. It had been mainly dedicated to the plaintiff’s efforts to obtain use of the stadium owned by the local polytechnic university and his great interest in getting a new facility for the local Kremin FC of which he was honorary president. The facts described in that part of the article were not contested. The impugned statement had been a value judgment which indicated that Mr B. had had a great interest in the new stadium, not that he had formal property rights in it. In fact, formal property rights had not been mentioned in the article. The phrase which followed the phrase the domestic courts had taken issue with made it clear that Mr B. was not the owner: “[The new stadium] would serve the needs of Kremin FC whose honorary president is the MP.”
16. The overall message of the article had been that the plaintiff had tried to get the university stadium for the football club but then had lost his interest because a new stadium had been built which would serve the club. That context was of fundamental importance and explained the author’s references to “a new toy” and “almost his own” in the context of the stadium.
17. Following the publication Mr B. was elected mayor of Kremenchuk. He had enjoyed great popularity which demonstrated that his reputation had not been harmed by the publication. Following his tragic death in 2014 the stadium in question had been renamed after him. This amounted to a public acknowledgement of the link between Mr B. and the stadium.
18. The domestic courts had failed to take into account that context, as well as the overall context of the article in which the impugned statement had been used, having focused exclusively on one sentence the plaintiff had taken issue with. They had failed to specify exactly how the plaintiff’s reputation had been damaged by the publication of that single sentence.
19. Despite the moderate nature of the interference, it had had a chilling effect on the applicant and the Ukrainian media.
B. The Court’s assessment
1. The Court’s overall approach
20. The Court considers that the “retraction” which the domestic courts required the newspaper to publish, was in fact in the nature of clarification of the applicant’s litigious statement (see paragraph 7 (i) above). It did not contradict her meaning as explained by the applicant before the domestic courts or this Court (see paragraphs 6 and 15 above). In this context the Court stresses the need to look beyond appearances and the language used and to concentrate on the realities of the situation (see, for example, Blokhin v. Russia [GC], no. 47152/06, § 180, ECHR 2016).
21. The Court is prepared to assume, however, that the domestic courts’ decisions constituted an interference with the applicant’s right to freedom of expression. The severity of that interference is a different matter, to be examined below. It is not in dispute that the interference was prescribed by law, notably the provisions of the Civil Code (see paragraphs 7 (vi) and 10 above), and pursued the legitimate aim of protecting the plaintiff’s reputation (see paragraphs 13 and 14 above).
22. As to necessity in a democratic society, the nature and severity of the penalties imposed are factors to be taken into account when assessing that question (see Bédat v. Switzerland ([GC], no. 56925/08, § 79, 29 March 2016). In the present case, criminal penalty or civil sanction of pecuniary nature was imposed on the applicant. As to the reasons given by the domestic courts for their decisions, the sufficiency of that reasoning will be examined pursuant to the Court’s assessment of one of the safeguard clauses provided by Article 35 § 3 (b) of the Convention (see paragraph 39 below).
23. Article 35 § 3 (b) of the Convention reads:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
...
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as de-fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
24. The question whether the applicant has suffered any “significant disadvantage” represents the main element of the rule set forth in Article 35 § 3 (b) of the Convention. Inspired by the general principle de minimis non curat praetor, this rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant’s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant’s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see C.P. v. the United Kingdom (dec.), no. 300/11, § 42, 6 September 2016, with further references).
2. Has the applicant suffered a “significant disadvantage”?
25. The Court reiterates that the Convention does not limit the application of the admissibility criterion set out in Article 35 § 3 (b) of the Convention to any particular right protected under the Convention. At the same time, the Court is mindful of the utmost importance of freedom of expression as one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Therefore, in cases concerning freedom of expression the application of this admissibility criterion should take due account of the importance of this freedom and be subject to careful scrutiny by the Court. This scrutiny should encompass, among others, such elements as contribution to a debate of general interest and whether a case involves the press or other news media (see Sylka v. Poland (dec.), no. 19219/07, § 28, 3 June 2014, with further references).
26. At the same time, the mere fact that the applicant is a journalist and formulates a complaint under Article 10 is not sufficient to find that the admissibility criteria in question cannot be applied (see Anthony France and Others v. the United Kingdom (dec.), no. 25357/16 and 3 others, §§ 37-51, 26 September 2017).
27. In view of the importance of freedom of expression, there can be no suggestion that a domestic judgment finding a certain statement in a journalist’s article untruthful, even if it does not impose a financial or other sanction on the journalist, should be seen, due to this fact alone, as involving no significant disadvantage (compare ibid., § 37).
28. Moreover, the Court does not doubt that the case was subjectively important for the applicant: she defended the case before three levels of domestic jurisdiction (compare Eon v. France, no. 26118/10, § 34, 14 March 2013) and then lodged her application and well-reasoned submissions before the Court (see paragraphs 14 and 19 above).
29. However, in the particular circumstances of the present case, the Court is unable to find that the applicant’s subjective perception can be justified on objective grounds.
30. Firstly, no criminal penalty or civil sanction of pecuniary nature was imposed either on the applicant or on the newspaper, they were only ordered to pay nominal court fees (see paragraph 7 (iv) above).
31. Secondly, as stated in paragraph 20 above, the “retraction” the domestic courts ordered to be published was, in substance, a mere clarification of the applicant’s impugned statement. It is a key consideration for the Court that that “retraction” did not in fact contradict what the applicant meant to say in the article.
32. Thirdly, the applicant’s impugned statement did not concern the results of the author’s journalistic investigation or her central argument in the article but was, rather, an off-hand comment on a secondary issue. It is difficult to see how the applicant’s professional reputation as a journalist may have been harmed by the domestic courts’ decisions obliging her to clarify that statement.
33. The applicant submitted that the domestic courts’ decision exercised a chilling effect on her and other journalists (see paragraph 19 above). However, these submissions are vague and unconvincing. In 2009 Ukraine had a pluralistic media and political landscape. In such a context what amounted to be a mere judicial clarification of a secondary statement in the article, with no sanction imposed, on a claim of an individual MP, could hardly have any chilling effect on the journalistic freedom.
34. In such circumstances, the Court concludes that the applicant has not suffered a “significant disadvantage”.
3. Safeguard clauses: (i) does respect for human rights compel the Court to examine the case and (ii) has the case been “duly considered by a domestic tribunal”?
35. As far as the first safeguard clause is concerned, the applicant’s article, while it no doubt concerned a matter of some interest to the local public, did not go to the issues on which there was lively public debate or controversy, in particular in the political sphere. Neither does the case concern any feature of domestic law (contrast, for example, Eon, cited above, § 34) or a matter of principle (contrast Berladir and Others v. Russia, no. 34202/06, § 34, 10 July 2012). It goes no further than the disagreement over the meaning of a secondary sentence in the applicant’s article with no wider implications which might raise real concern under Article 10 of the Convention (compare Sylka, cited above, § 34).
36. The principles of the Court’s case-law concerning freedom of expression are well-established (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 82-93, ECHR 2015 (extracts)). The present case raises no issue which would require the Court to clarify or develop those principles (contrast, for example, Mikhaylova v. Russia, no. 46998/08, § 49, 19 November 2015).
37. The purpose of the second safeguard clause, namely that “no case may be rejected... which has not been duly considered by a domestic tribunal”, is to avoid a denial of justice (see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). It requires that the applicant should have had the opportunity of submitting his arguments in adversarial proceedings before at least one level of domestic jurisdiction (see Ionescu v. Romania (dec.), 36659/04, § 40, 1 June 2010, and Ştefănescu v. Romania (dec.), no. 11774/04, § 46, 12 April 2011).
38. In the present case those requirements were satisfied. The case has been examined on the merits by domestic courts at three levels of jurisdiction public hearings were held at two levels of jurisdiction and the applicant had an opportunity to present her case, which was not restricted in any way. The applicant alleged no irregularity in that process.
39. The applicant argued that the domestic courts had failed to give sufficient reasons for their decisions on the substance of the case (see paragraphs 15 to 18 above). The Court is prepared to accept that the domestic courts reasons were succinct. It is, indeed, a matter of regret that they did not address certain matters which, in accordance with the Court’s case-law under Article 10 of the Convention, are of relevance in cases involving freedom of expression, such as the applicant’s apparent use of irony, the use which is part of a journalist’s freedom of expression (see Ziembiński v. Poland (no. 2), no. 1799/07, § 44, 5 July 2016). Neither did they examine the applicant’s statement in light of the principle, well-established in the Court’s case-law, that the limits of acceptable comment are wider as regards politicians than as regards a private individual (see, for example, Worm v. Austria, no. 22714/93, § 50, 29 August 1997).
40. At the same time, the domestic courts drew a distinction between value judgments and statements of facts and gave relevant reasons for their decision to classify the impugned statement as the latter and to regard it as untruthful (see paragraph 7 (i) and (ii) above). That classification is a matter which in the first place fell within their margin of appreciation (see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313).
41. The courts thus duly examined the matter before them. Given the context and what was at stake (see paragraphs 30 to 33 above), the Court does not consider, in the particular circumstances of this case, that the shortcomings identified in the domestic courts’ reasoning are sufficient to hold that the case was not “duly considered by a domestic tribunal” or that the case raises a matter of respect for human rights requiring the Court to examine the application on the merits.
4. Conclusion
42. The three criteria for inadmissibility being present, the application must be declared inadmissible pursuant to Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 June 2019.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy