CASE OF DERDIN v. UKRAINE

FIFTH SECTION

CASE OF DERDIN v. UKRAINE

(Application no. 59204/13)

JUDGMENT
 

STRASBOURG

13 March 2025

This judgment is final but it may be subject to editorial revision.

In the case of Derdin v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Andreas Zünd, President,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 59204/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 September 2013 by a Ukrainian national, Mr Oleksiy Volodymyrovych Derdin (“the applicant”), who was born in 1975, lives in Kyiv and was represented by Ms L.L. Pankratova, a lawyer practising in Kyiv;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 13 February 2025,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The case mainly concerns the applicant’s complaint that he was ordered to retract a number of statements which he had published in a newspaper. The applicant relied on Articles 6 and 10 of the Convention.

2.  The applicant is editor-in-chief and publisher of a magazine, Vse pro ohoronu pratsi (hereinafter – “V.”). Ukrexpert is an association of legal persons which provided services in the field of industrial safety and in relation to the use and protection of natural resources.

3.  The applicant wrote an article on Ukrexpert and published it in V. and on the magazine’s website.

4.  The article contained the following statements:

“(1)  From 1998 to 2006 Ukrexpert was a body responsible for the certification of staff carrying out non-destructive testing. In 2006 it ceased this area of business at the request of the Anti-Monopoly Committee of Ukraine (‘the ACU’). [The ACU ordered as follows:] ‘... Ukrexpert must stop acting in apparent violation of competition law in this market. ... Ukrexpert has been setting prices for its services in a non-transparent manner’ (O. Kostusev, Chairman of the ACU, http://www.snrc.gov.ua, 4 July 2006).

...

(2)  [The State body] Derzhgirpromnaglyad believes that [Ukrexpert’s work] has nothing to do with the certification of personnel or the testing of laboratories. But this is not true!

...

(3)  [I]n 2006, according to the [ACU’s] conclusions, Ukrexpert had been engaged in practices that violated competition law. The ACU therefore revoked its licence. So what changed in April 2011? Perhaps Ukrexpert managed to obtain the relevant permission from the ACU? Here is the answer: the ACU ... did not receive any complaints or statements from business entities regarding the transfer of these powers by Derzhgirpromnaglyad ... The legislation on protection of economic competition does not provide for the imposition of penalties for failure on the part of the authorities to comply with section 20 of the Law of Ukraine on the Anti-Monopoly Committee of Ukraine or section 16 of the Law of Ukraine on the protection of economic competition.

...

(4)  And as for point 1: permission no. 20.PR.98 of the State Committee for the Supervision of Health and Safety in the Workplace – law-enforcement agencies should be asking questions. Firstly, in terms of validity, the permission directly contradicts the requirements of section 21 of the Law of Ukraine on health and safety in the workplace, as well as paragraph 11 of the Procedure for issuing permits by the State Committee for the Supervision of Health and Safety in the Workplace and its territorial bodies (Resolution of the Cabinet of Ministers of Ukraine no. 1631 of 15 October 2003, hereinafter Procedure no. 1631). Secondly, in terms of type of activity, the permission does not comply with Annex 1 to Procedure no. 1631.

...

(5)  The explanation put forward by the NAAU [National Accreditation Agency of Ukraine] suggests the following conclusion: Ukrexpert unjustifiably, and it turns out, illegally, appropriated the powers of the PCB [personnel certification body]. After all, this organisation is not in the registers of the NAAU!

...

(6)  Secondly, a careful reading of the procedural rules shows that Ukrexpert carries out not only examinations, but also the certification of testing and diagnostic laboratories. If so, this is clearly illegal.

...

(7)  If it is true that Ukrexpert has taken upon itself the role of a personnel certification body, as well as that of a body certifying laboratories, then is it not an imposter company, ‘a self-proclaimed director’? Where is Derzhgirpromnaglyad looking!

...

(8)  And the finishing touch. Is anyone still able to explain on what basis State-owned enterprises (such as ETCs [expert technical centres]) pay ‘membership fees’ (according to our data – 1% of the projected revenues per month) to Ukrexpert? You can’t just waste public money on the private sector or whoever you want! And the picture is gloomy. Broadly speaking, the budget of Ukrexpert ... looks like the following:

– up to 1,500,000 Ukrainian hryvnias (UAH) a year – certification of [non-destructive testing] staff;

– up to UAH 600,000 a year – examination/certification of diagnostic and testing laboratories;

– up to UAH 2,000,000 a year – ‘membership fees’ from State ETCs.

...

(9)  What is the money spent on? This is a mystery that [only] the SSU [the Security Service of Ukraine] or the Prosecutor General’s Office can solve. The fact is that in this case, strategic decisions on spending are made collectively. Even if finances are openly ‘laundered’ (according to people in the know, officially the majority of funds go, allegedly, towards the development of regulations), no one will be held accountable.”

5.  Ukrexpert instituted legal proceedings against the applicant, requesting that he retract the statements set out above.

6.  On 23 October 2012 the Shevchenkivskyy District Court of Kyiv dismissed that claim, pointing out that the applicant’s statements constituted value judgments based on information obtained from official sources.

7.  Ukrexpert appealed. In its appeal it did not cite the statements made by the applicant, but instead requested the court to oblige him “to retract the following information”:

– that in 1998 it had started providing services relating to the certification of staff conducting non-invasive testing and that it had ceased providing such services in 2006, at the request of the Anti-Monopoly Committee;

– that D. (a State authority) had not issued a document authorising Ukrexpert to carry out the certification of personnel;

– that D. was authorised to certify diagnostic laboratories and their staff;

– that one of the authorisations obtained by Ukrexpert from the State authorities had been invalid;

– that Ukrexpert had misappropriated the powers vested in a body to carry out the certification of personnel;

– that Ukrexpert was illegally carrying out the certification of laboratories;

– that Ukrexpert was a “self-proclaimed” body that certified staff.

8.  On 30 January 2013 the Kyiv Court of Appeal quashed the decision of the first-instance court and found against the applicant, obliging him to retract the information in question in a forthcoming issue of the magazine. It also obliged the applicant to pay UAH 332 (approximately EUR 30). To substantiate its decision, the court cited various legal provisions and noted that “the applicant’s statements did not constitute value judgments” and that “the facts on which the applicant [had] based his value judgments [were] not indisputable”.

9.  A subsequent cassation appeal was dismissed on 22 February 2013. The case file contains a certificate issued by the Ukrainian postal service stating that the decision was delivered to the applicant on 6 March 2013. On 6 September 2013 the applicant sent his first letter to the Court.

THE COURT’S ASSESSMENT

10.  The applicant complained that the court decisions against him constituted a violation of Article 10 of the Convention.

11.  The Government submitted that the applicant had lodged his complaint more than six months after the final decision in the case had been given and that for that reason the application should be rejected.

12.  The Court observes that the applicant submitted proof that he had received the final decision on 6 March 2013 (see paragraph 9 above); he thus complied with the six-month time-limit.

13.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

14.  The Government submitted that the disputed statements were statements of facts and that they were defamatory and false. They further stated that the interference into the applicant’s rights was based on law, pursued a legitimate aim, and was necessary in a democratic society.

15.  The applicant maintained his complaints.

16.  The Court accepts that the courts’ decisions against the applicant constituted an interference with his rights, based on law and pursuing a legitimate aim of protection of the reputation or rights of others. It remains to be established whether it was “necessary in a democratic society”.

17.  In reviewing under Article 10 of the Convention the domestic courts’ decisions, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and relied on an acceptable assessment of the relevant facts (see Perinçek v. Switzerland [GC], no. 27510/08, § 196, ECHR 2015 (extracts)). The general principles laid down in the Court’s case-law concerning the margin of appreciation and the balancing of the right to freedom of expression against the right to respect for private life were summarised in Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 85-95, 7 February 2012).

18.  The Court has also previously emphasised that there is a difference between the reputation of a legal entity and the reputation of an individual as a member of society. Whereas the latter may have repercussions on one’s dignity, the former is devoid of that moral dimension (see Freitas Rangel v. Portugal, no. 78873/13, §§ 48, 53 and 58, 11 January 2022).

19.  In the present case, the Court notes that the first instance court established that the applicant’s statements constituted value judgments (see paragraph 6 above). The Court of Appeal quashed that finding stating that “the applicant’s statements did not constitute value judgments” and that “the facts on which the applicant [had] based his value judgments [were] not indisputable”. The Court observes, however, that from the reasoning of the Court of Appeal it is unclear whether it considered the applicant’s statements to be statements of fact or value judgments. The Court of Appeal’s findings are, in fact, mutually exclusive (see paragraph 8 above). The Court recalls, in this connection, that where courts make no distinction between value judgments and statements of fact, this is an indiscriminate approach to the assessment of speech and, in the Court’s opinion, is per se incompatible with freedom of opinion, a fundamental element of Article 10 of the Convention (see Gorelishvili v. Georgia, no. 12979/04, § 38, 5 June 2007; Grinberg v. Russia, no. 23472/03, §§ 29-30, 21 July 2005).

20.  The Court further notes that the Court of Appeal did not address the context in which the statements had been made or the aim pursued by the applicant in publishing the article. Nor did it take into account the applicant’s position as an editor-in-chief and publisher of the magazine or provide any analysis concerning the position of the plaintiff association which apparently played an important role in achieving goals that are in the public interest, namely, ensuring industrial safety and protection of natural resources (see paragraph 2 above). Moreover, the Court of Appeal did not attempt to perform a balancing exercise between the need to protect the plaintiff association’s reputation and the applicant’s right to freedom of expression.

21. The above elements lead the Court to conclude that the domestic courts did not “apply standards which were in conformity with the principles embodied in Article 10” and failed to give relevant and sufficient reasons to justify the interference. The Court therefore concludes that the interference with the applicant’s right to freedom of expression was not “necessary in a democratic society”.

22.  There has accordingly been a violation of Article 10 of the Convention.

23.  The applicant also complained under Article 6 of the Convention that the courts had ignored his arguments and had not advanced sufficient reasons for their decisions.

24.  Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

25.  The applicant claimed 2,000 euros (EUR) in respect of non-pecuniary damage.

26.  The Government contested that claim.

27.  The Court awards the applicant EUR 2,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(a)  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.

Done in English, and notified in writing on 13 March 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Andreas Zünd
 Deputy Registrar President