Communicated on 15 May 2017
FOURTH SECTION
Applications nos. 41214/08 and 49440/08
REDAKTSIYA GAZETY GRIVNA, PP
against Ukraine
lodged on 18 June 2008 and 9 September 2008 respectively
STATEMENT OF FACTS
The applicant company, Redaktsiya Gazety Gryivna, PP, is a Ukrainian single shareholder company. It is the editorial body of Grivna, a regional newspaper published in Kherson (hereinafter “the newspaper”).
The facts of the case, as submitted by the applicant company, may be summarised as follows.
A. The circumstances of case
In 2006 the newspaper published two articles containing negative statements about Mr I. who was from 1996 to 2012 the president of the Kherson Regional Court of Appeal. The articles gave rise to defamation proceedings. The translation of the relevant parts of the articles is set out below. The passages which were the subject of the subsequent domestic proceedings are underlined and numbered for future reference. The parts of the articles rephrased and summarised by the Registry are presented in square brackets. Where initials are used, the actual articles contained I.’s full name: his first name, surname and/or patronymic in various combinations.
1. Application no. 49440/08
a) Article A
On 12 January 2006 Verkhovna Rada of Ukraine (hereinafter “the Parliament”) examined the question of I.’s lifetime appointment to the position of a judge since the ten-year term of his initial appointment was expiring. Due to concerns raised by some Members of Parliament about I.’s candidacy, the Parliament decided to adjourn the examination of the question.
An article, published in the newspaper’s issue for 19-26 January 2006, was dedicated to the above event and entitled “Purgatory for judges (Чистилище для судей). It occupied two full pages in the newspaper. The first page of the article contained the following text:
“We often criticise the Members of Parliament, and for good reasons. But this gathering of people with different views and business interests under the same roof sometimes produces unpredictable decisions. Perhaps it is too early to call this “democracy”. However, the fact that the MPs have “rejected the advances” of the president of the Kherson Court of Appeal Mr I. (получил от народных депутатов «гарбуза») [A1] speaks volumes.
So let us talk about justice in the Kherson Region and first of all about its chairman Mr I. Below we publish a transcript of the proceedings of the Parliament concerning... appointment of judges for life. On 12 January 2006 many Kherson residents watched live this meeting of the Parliament and our Mr I. was the main hero of that “show” [A2]. We have been writing about him much lately. Other publications have been writing even more. We will provide our readers with a brief reminder about Mr I. based only on our own publications which, by the way, have not been challenged. [We] are also in possession of a number of incontrovertible documents.
We give you this in lieu of prologue: “... In his eight years and counting at the head of the regional court I. has found himself dozens of loyal people – lawyers, judges, and important businessmen – for whose personal and business interests he has successfully lobbied through favourable judicial decisions [A3] (обзавелся десятками преданных людей... чей бизнес и личные интересы успешно лоббировал с помощью нужных решений в судах)...
Here is the conclusion: I. is considered the person in charge and untouchable [A4] in the Kherson Region where 14 governors succeeded each other in 10 years... If one removes him successfully, even if peacefully, the people will believe in changes for the better in the pervasively corrupt judicial system...”
This document arrived in our offices last autumn. It was addressed to a very high‑ranking and influential official in the capital in response to his request for information from Kherson. But first official documents had appeared right after I. took up his position and they corroborate the above-mentioned reasoning. Here is just a short quote from the letter of members of the regional council to the President of the Supreme Court dated 17.02.1998:
“Using his position I. received 100,000 US Dollars from G. who has been released from serving his sentence and confiscation of his assets. He thus helped G. avoid his liabilities vis-à-vis his... creditors.”
They go on to describe I.’s “tricks” (проделки) on two pages! [A5] And here is the response of the Supreme Court’s President to the above-quoted episode: [there followed a quote from a letter of the President of the Supreme Court stating that in April 1998 I. had been reprimanded for a breach of professional ethics by the Qualifications Commission of Judges].
So I. has been “duly punished” at the very dawn of his career. It appears that the lesson did him good since our offices have no information about the first judge of the region receiving any subsequent reprimands. A new person became the Supreme Court’s President soon afterwards and I. could feel more confident. Perhaps the relative at the Supreme Court helped to make it so [A6]. A relative so influential that he is now awaiting his appointment to the Constitutional Court...
[There followed extensive quotes from articles previously published in February, April and May 2005 in the same newspaper, in particular one discussing assets allegedly belonging to I. and his relatives which contained quotes from a letter of the chairman of the Council of Judges. The letter, as quoted in the article, contained an acknowledgement that Judge D., chairman of the civil chamber of the Supreme Court, was I.’s son’s father-in-law.]
...
And now I.’s 10-year term as a judge is coming to an end. New laws provide for lifetime appointment by a majority vote in the Parliament. And here our president “has made himself famous” country-wide (“прославился” на всю страну). [A7] [The article then mentioned Judge O., whose resignation was discussed at the same plenary meeting of the Parliament as I.’s appointment] But Mr I. is a “hard nut to crack” and is dreaming of keeping his post no matter what (“крепкий орешек” и несмотря ни на он что мечтает сохранить пост). [A8]
Almost the entire second page of the article was taken up by the verbatim reproduction of the transcript of the Parliament’s plenary meeting of 12 January 2006 at which the Parliament examined the questions of appointment and resignation of a number of judges. According to the transcript, several MPs said that they had received complaints about the situation in the Kherson Region’s courts. Mr I. denied any wrongdoing and stated that all complaints have been checked by appropriate authorities and found baseless. The head of the relevant parliamentary committee stated that the committee had also conducted an inquiry into complaints raised about I. and found them without foundation. He also implied that I. might have been a victim of a slander campaign orchestrated by aggrieved litigants. However, in view of the concerns raised by several deputies, I.’s candidacy was withdrawn for additional checks. A brief discussion followed concerning Judge O. of one of the district courts of the Kherson Region who presented her resignation to the Parliament. One of the deputies made a speech to the effect that Judge O. had resigned to avoid responsibility for bribery.
The reproduction of the transcript was followed by the following conclusion in bold:
“As you can see, dear readers, representatives of the Kherson justice have “distinguished themselves” twice. It was not only Mr I. who disgraced himself in front of the entire country [9] but also his subordinate from one of the district courts.”
Mr I.’s photograph was placed on the first page of the article, occupying approximately one sixth of the page. He was presented in formal wear, with a neutral face expression, apparently sitting at a desk. Under the photograph the following caption appeared:
“I will recompense them according to their deeds” (Old Testament)[1]
Mr I. is shown on the photo”
It appears that the article was also accompanied by another photograph of Mr I., with the caption “The Parliament so far has not given a “life sentence” to the president of the Kherson Court of Appeal.” However, the copy of the article provided to the Court does not contain that photograph.
b) Domestic proceedings
In April 2006 Mr I. brought a claim in the Kherson Suvorovsky District Court against the applicant company seeking retraction of statements A1-A9 and compensation for non-pecuniary damage.
According to the applicant company, in the course of the trial it produced by way of proof of the factual grounds for the impugned statements twenty‑five articles published in the local newspapers from 1997 to 2006 as well as of the materials referred to in the article itself, except for the document which supposedly contained statements A3 and A4.
The applicant company also lodged an application with the Supreme Court urging it to reassign the case, in view of the plaintiff’s position, to a court in a different region. The applicant company twice asked the first-instance court to suspend examination of the case until the Supreme Court rules on its reassignment application but, according to the applicant company, the first-instance court dismissed those requests on the grounds that they were “not based on the law”.
On 22 May 2006 the first instance court allowed the claim. It declared: (i) the photographs and captions to them and statements A1-A5 and A7-A9 insulting and damaging to I.’s reputation, and (ii) statement A6 untrue and damaging to I.’s reputation.
The court ordered the applicant company to publish its judgment and awarded I. UAH 100,000 in compensation for non-pecuniary damage and UAH 5,000 in court costs (about EUR 14,860 and EUR 740 respectively at the time).
By way of reasoning the court stated that statements A1-A5 and A7-A9 could not be protected as value judgments, since they were deliberately insulting. Article 10 § 2 of the Convention permitted restrictions on freedom of expression for the protection of the reputation of others. Neither the transcript of the Parliament’s plenary meeting nor other documents before the court provided a factual basis for those statements.
The defendant had failed to prove the truth of the factual statement A6 concerning I.’s supposed family connection at the Supreme Court or to point to the source of that information.
As to the photographs, the court considered that the applicant company had failed to prove that I.’s photographs had been taken either with his consent or at a public event.
The totality of the circumstances showed, for the court, that the applicant company’s purpose in publishing the impugned statements and photographs was to deliberately damage I.’s reputation.
On 23 May 2006 the Supreme Court, apparently unaware that the examination of the case at the first instance had already been completed, reassigned the case to a district court in the Mykolaiv Region on the grounds that “a judge was a party to the proceedings”.
The applicant company appealed arguing in particular that the first instance court was not impartial because it refused, without giving particular reasons, to suspend proceedings while the reassignment application had been pending before the Supreme Court. The applicant company also argued that the first-instance court’s judgment was contrary to Article 10 of the Convention. It cited a number of the Court’s judgments, including De Haes and Gijsels v. Belgium (24 February 1997, Reports of Judgments and Decisions 1997‑I).
On unspecified dates the applicant company and I. asked the Supreme Court to reassign the case to a different region’s Court of Appeal. On 5 July 2006 the Supreme Court reassigned the case to the Zaporizhzhya Regional Court of Appeal.
On 18 August 2006 the Zaporizhzhya Court of Appeal reduced the amounts awarded to UAH 20,000 for non-pecuniary damage and UAH 1,000 for costs (about EUR 2,970 and 148 respectively at the time), having regard to the applicant company’s financial situation, and upheld the remainder of the first-instance court’s judgment. By way of reasoning the Court of Appeal stated that the public status of the plaintiff, while it opened him up to greater criticism than a private person, did not preclude him from seeking protection of his reputation. The court found unconvincing the applicant company’s argument that they had the legitimate purpose of informing the public, as opposed to damaging I.’s reputation as the president of the regional court. Even though the photographs had been taken in the course of an official meeting, the captions were unrelated to that meeting and therefore the first-instance court’s conclusion that their publication was aimed at damaging I.’s reputation had been justified.
In its appeal on points of law the applicant company reiterated essentially the same arguments as in its previous appeal.
On 10 March 2008 the Odessa Regional Court of Appeal, acting as the court of cassation, upheld the lower courts’ decisions.
2. Application no. 41214/08
a) Article B
The article, published in the newspaper’s issue for 11-18 May 2006, was authored by Ms K., who was at the time the director of the applicant company, and entitled “Ex-court president is “burying” Lady Justice under his claims (Экс-председатель суда «завалил» Фемиду исками)”. Its relevant parts read:
“Claims raining on the independent media of the Kherson Region from Mr I., who until recently used to be president of the Regional Court of Appeal, cannot be called otherwise than a trend. Newspapers who take a consistent line in favour of a just and honest judicial system are targeted.
It seems like I. “has had enough” of a clear and consistent position of Mr S., the head of the Kherson City committee of the Union of Retired Officers of the Armed Forces and Law Enforcement.
Following a defamation claim against Grivna newspaper, Mr I. also sued VIK newspaper which had published S.’s open letter to the [regional governor]. S. asked the governor to state his position concerning the events which became a topic for examination in the Parliament and do not leave the newspaper pages. In his letter the author appealed to the government’s representaitve in the hope that he would not remain an impartial observer but could influence the situation with justice in the region. [B1] Claims of retired servicemen seeking increases in their pensions to which they are entitled by law have been pending before the courts of the region for two years. While in other regions the pensioners get the money to which they are entitled by law, in our region only several dozen pensioners managed to get their money. Why do the courts work this way in our region? [B2] ...
Remarkably, this publication in the VIK newspaper was not the end of contacts between S. and I. Literally days after the publication of that issue, the letter writer and the judge had a conversation, at the request of the latter. S. says that a dressing-down is the only term that can describe the tone of the “conversation”. After this meeting the officer’s hope of establishing a dialogue with the judge and to clarify the situation collapsed. This was the subject of a new open letter he addressed directly to Mr I. And then something totally unexpected for the retired submarine officer happened: he was attacked at night by strangers, received a serious hit on the head, obliging him to be hospitalised. A coincidence? Relevant authorities could answer this question but they initially refused to register S.’s complaint about the attack. He has not been informed about the results of the investigation. [B3]
This is the short shorty of the [contacts between S. and I.] The final touch to the story will be a court judgment on the defamation claim. The claim will be examined by the same judge St. of the Suvorovsky District Court who surprisingly gets to examine I.’s claims. In contrast to the case against our newspaper, where I. seeks damages for himself, in the case against VIK his claims are entirely selfless. He is asking that damages be paid to [an orphanage]. Charity is of course a laudable enterprise, but editorial boards of both Grivna and VIK understand that the point of the operation is not to get some money (затеяно все далеко не из-за желания получить деньги). [B4]
Most likely, court decisions... in his favour would come handy for I. when the Parliament again examines the question of his lifetime appointment. Claims granted at first instance and on appeal may serve as proof for the argument that journalists’ unjustified attacks (this is how Lady Justice’s servants call our critical publications) are made up and baseless. [B5] Especially because judge St. does not take into account a seemingly logical idea... that if one of the parties is a court or a judge then the case should be examined by a higher court... [B6]”
b) Domestic proceedings
Mr I. brought a claim against the applicant company and Ms K. seeking retraction of statements B1-B6 and compensation for non-pecuniary damage.
According to the applicant company, in the course of the trial it has produced as proof of the factual grounds for the impugned statements twenty-four articles published in the local newspapers from 1997 to 2006 as well as of the materials referred to in the impugned article.
On 19 August 2006 the Zaporizhzhya Shevchenkivsky District Court, allowed the claim in part, ordering Ms K. to apologise to I. by retracting statements B1-B5 and the applicant company to publish the retraction in the newspaper. The court awarded UAH 50,000 (about EUR 7,450 at the time) in compensation for non-pecuniary damage, to be paid to an orphanage.
Referring to Article 10 of the Convention and, in general terms, the case-law of the European Court, the court stated that public status of the subjects of publications did not deprive them of the right to demand protection of their reputation. While the impugned statements formed part of the article, they could be examined separately. Even though they constituted value judgments, they were insulting. The defendants failed to provide proof that the statements had any factual basis. Their references to critical publications about courts in the regional press did not constitute such a basis. The court concluded that the defendants’ intention was not to inform the public but rather to spread negative information about the plaintiff.
While public figures had to tolerate greater criticism than others, criticism expressed as value judgments still required certain substantiation by objective and verified facts. Freedom of the press and protection offered to elements of provocation in journalistic expression could not justify baseless criticism with insulting elements, as it has occurred in the case. Contrasting the case to Lingens v. Austria (8 July 1986, § 46, Series A no. 103), the court held that unlike that latter case in which the facts underlying the value judgments and the journalist’s good faith had been undisputed, in the instant case the defendants had failed to prove the facts underlying their statements and, therefore, the court did not find that they acted in good faith.
The court refused to declare statement B6 defamatory.
On 14 November 2006 the Zaporizhzhya Regional Court of Appeal upheld the judgment but modified it to the effect that damages were to be paid to Mr I. and not the orphanage since domestic law did not allow for directing the funds awarded to a plaintiff to a third party charitable institution. In addition to endorsing the first-instance court’s reasoning, the Court of Appeal held that it has not been established that the defendants had checked the information they disseminated and, accordingly, no exemption from liability under State Support of Media Act applied.
On 21 December 2007 the Odessa Regional Court of Appeal, acting as the court of cassation, upheld the lower courts’ decisions.
3. Subsequent events
On 2 November 2006 I. was appointed to the position of a judge for life and continued to occupy the position of the president of the Kherson Court of Appeal until 2012. In February of that year criminal proceedings were instituted against him on suspicion of bribery and in March he resigned from his position. In 2014 he was acquitted.
B. Relevant domestic law
1. Code of Civil Procedure of 2004
Article 108 provides that territorial jurisdiction over a case in which a judge or a court is a party shall be determined by a higher court.
2. Civil Code of 2003
At the material time Article 227 § 3 provided that negative information about a person had to be presumed untrue unless the person who had disseminated the information had proven the contrary. This provision was repealed by law of 27 March 2014.
Article 307 § 1 provides that an individual can be photographed only with his or her consent. The consent is presumed if the photograph is taken openly in the street or at a public event.
3. Information Act of 1992
Article 5 of the Act, as worded at the relevant time, declared that objectivity and credibility of information constituted one of the principles of legal relations in the field of information.
Article 47-1 of the Act provides that no one may be held liable for making value judgments. It defines value judgments as follows:
“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 proven ...”
4. State Support of Mass Media Act of 1997
Article 17 provides that a journalist and/or mass media professional shall be exempted from liability for the dissemination of untrue information if the court establishes that the journalist has acted in good faith and has checked the information.
COMPLAINTS
The applicant company complains under Article 10 of the Convention of a violation of its freedom of expression on account of the domestic courts’ decisions holding it liable for the publication of the two impugned articles.
In application no. 49440/08 it also complains that the Kherson Suvorovsky District Court was not impartial and was not a “tribunal established by law” in the sense of Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. Question concerning application no. 49440/08 only
Was the Kherson Suvorovsky District Court, which dealt with the applicant’s case at first instance, an impartial tribunal “established by law”, as required by Article 6 § 1 of the Convention?
2. Question concerning both applications
Has there been a violation of the applicant company’s right to freedom of expression guaranteed by Article 10 of the Convention?
[1]. Jeremia 25:14, King James Bible.
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