FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 49876/07
by Oleg Leonidovich RODIVILOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 10 May 2011 as a Chamber composed of:
Dean Spielmann, President,
Elisabet Fura,
Boštjan M. Zupančič,
Isabelle Berro-Lefèvre,
Ann Power,
Angelika Nußberger,
Mark Villiger, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 8 November 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Oleg Leonidovich Rodivilov, is a Ukrainian national who was born in 1965 and lives in Simferopol, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a member of the Verkhovna Rada of the Autonomous Republic of Crimea (“the ARC”) (the representative body of the ARC) (“Верховна Рада Автономної Республіки Крим”) and a member of the citizens’ association “The Russian Community of the Crimea”.
On 9 November 2004 in a plenary meeting of the Verkhovna Rada of the ARC the applicant said the following:
“I am empowered by the voters to inform you that if by November 17, thus by the next session of the Verkhovna Rada, there has been no decision on the legal confirmation of the status of the Tikhaya Bukhta nature reserve area (Тихая бухта), the ordinary citizens will themselves put a stop to the unlawful acquisition of land. Today extremists from the Majlis-Kurultai radical group are freely bringing construction materials to the Tikhaya Bukhta, openly and insolently breaching Ukrainian and Crimean laws.”
The Kurultai of Crimean Tatars is a representative body for the Crimean Tatars, which, according to its Rules of Procedure decides on all essential issues of political, economical and cultural life of Crimean Tatars. The Majlis is an executive body of the Kurultai. They regularly hold sessions. However, there are no official legal acts which determine the legal status of these bodies. The members of the Majlis are allegedly members of the Council of Crimean Tatars Representatives affiliated with the President of Ukraine (Decree of the President of Ukraine of 18 May 1999 no. 518/99).
On 12 November 2004 the journalist A. published an article in the Golos Kryma (“Голос Крыма”) newspaper – ‘An MP threatens the Crimean Tatars’ (‘Депутат грозит крымским татарам’). The article said the following:
“As always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Radivilov, MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”. In his opinion, despite prohibitions, the Majlis assisted the “invaders” in bringing construction materials into the national reserve zone. He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders”.
On 8 July 2005 the Golos Kryma newspaper published a letter from the applicant:
“On 12 November 2004 Golos Kryma (issue no. 46 (573)) published an editorial by the journalist [...] named ”An MP threatens the Crimean Tatars”.
In the article it is intentionally falsely stated that allegedly “as always, representatives of the Russian community of the Crimea firmly opposed the Crimean Tatars. O.Rodivilov MP, his usual self, did not fail to mention the Majlis-Kurultai with regard to the “unlawful acquisition of land in the Tikhaya Bukhta”... He threatens ...” (as follows).
This information in the article is intentionally biased, incites inter-ethnic hatred rage and as it references me as a representative of the Russian Community of the Crimea in the Parliament of the Crimea, it threatens to worsen relations between the two largest ethnic groups of the Republic of Crimea.
Besides, the libel was intended to humiliate me as a member of the Supreme Council of the Crimea in the eyes of my voters, citizens of various ethnic origins.
These provocative and above all intentionally false articles in the Golos Kryma newspaper, which was founded by the State Committee on Ethnic Relations, systematically disseminated in this weekly publication (most recently on 18 and 25 March 2005), discredit me as a citizen.
My systematic unreasonable harassment in the pages of Golos Kryma I perceive as an intention on the part of the editors to humiliate me as a citizen of Russian ethnic origin. The aforementioned untrue statements in Golos Kryma serve as a basis for this. [...]
In this respect, in accordance with the law in force, I demand publication of an editorial in the next issue of Golos Kryma to correct this statement in full.
I also demand public apologies from the editors, to be published together with my statement.”
On the same page the newspaper also published an article by the journalist A. – “Do not step on journalists’ throats, do not knock the pen out of their hands!” (“Не наступайте на горло журналистам, не вышибайте из рук перо!”), in which the journalist quoted the applicant’s speech of 9 November 2004 and said the following:
“As a journalist accredited to the Verkhovna Rada of the ACR, I attend all the meetings of the parliamentary sessions, of the presidium, and of the commissions and so on and know about O.Rodivilov’s speeches first-hand. And whether written reproduction of an oral statement can be called a libel? According to the author of the letter, my information only reflects what has been said from the high tribune by the member of the Verkhovna Rada of the ARC, O.Rodivilov. And he has absolutely correctly mentioned that such things incited racial hatred.
I quote the record of a special session of the Verkhovna Rada of the ARC of 9 November 2004 [...]
I believe you would agree with me that these words pronounced from the high tribune, cannot only incite “racial hatred”, but would simply provoke radical actions by ordinary citizens against the Crimean Tatars.
From the high tribune of the Verkhovna Rada of the ARC and whenever possible Mr Rodivilov discredits the publicly elected Majilis, legitimised by a decree of President Kuchma (and not banned by acting President Yushchenko) as the Council of Representatives of the Crimean Tatars affiliated with the President of Ukraine. Therefore, all thirty-three members of the Majilis are members of this Council. The member of the Verkhovna Rada of the ARC, elected by “citizens of various ethnic origins”, “representative of the Russian Community of the Crimea in the Parliament of the Crimea”, calls the members of the Council extremists from the radical group “Majilis-Kurultai”.
So who is it who threatens to worsen the relationships between citizens?
I quote the record of the meeting of the Verkhovna Rada of the ARC of 16 March 2005. Appealing to the thirteen-year-old documents, he requested “to bring the group of Majilis-Kurultai, into conformity with law. This is an extremist Muslim group and there are a lot of documents in this respect in your main office”.
Not everybody can spend time lodging applications with various bodies as Mr Rodivilov does, and forcing journalists, instead of [fulfilling] their direct duties, to write explanations to various bodies, which already have enough to do. In all likelihood he has his special reasons and I think I know what they are. As they say today, he wants to run a “PR campaign” before the elections.
“Golos Kryma is involved in provocations”, - states the member of the Verkhovna Rada of the ARC O.Rodivilov”. That was the title of an article in Russkiy Mir, in which its author accuses several employees of the newspaper [...] of bias and provocation. Besides, the member of Parliament O.Rodivilov complained to the Simferopol Prosecutor’s Office, to the Tsentralnyy District Prosecutor’s Office, and to the Permanent Representative of the President of Ukraine in the ARC, [...]. And if it takes nearly a whole day to provide explanations to one of these bodies (those who worked in the mass media when there was censorship remember those “nice” times very well), our honourable reader will understand how long it will take to write explanations to all these bodies. You can forget about your work as a journalist, which was probably what the MP wanted.”
In November 2005 the applicant instituted civil defamation proceedings in the Tsentralnyy District Court of Simferopol against the newspaper Golos Kryma. He stated that in the articles he had been accused of inciting racial hatred and humiliated as a citizen of Russian ethnic origin. The applicant stated that he “was fighting against the Majlis-Kurultai criminal organisation and not against the Crimean Tatars”. He requested it to be published that the statements about him published on 12 November 2004 and 8 July 2005 were defamatory. He also claimed 100 Ukrainian hryvnias in compensation for non-pecuniary damage. The applicant later amended his claims and requested publication of a correction.
On 3 July 2006 the court found in part for the applicant. It held that in his speech of 9 November 2004 the applicant had requested that a decision be urgently adopted on the legal status of a nature reserve and tried to warn the members of the Verkhovna Rada about the possible consequences of not doing so. Therefore, the court found that the expressions “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were defamatory. The court ordered the newspaper to publish the operative part of its decision. The remainder of the applicant’s claim was rejected.
On 30 January 2007 the Court of Appeal of the ARC quashed this decision and rejected the applicant’s claims. It found that:
“When adopting its decision, the court did not take into account that the author’s expressions: “An MP threatens the Crimean Tatars” and “He threatened that a group of inhabitants of south-east Crimea was going to punish the “offenders” were value judgments and their veracity was impossible to prove.
The claimant is a public figure.
The panel of judges agrees that the newspapers which quoted the statements of MP Rodivilov, were more tendentious and harsher interpretations of his speech. They include the author’s perceptions and her critical evaluation of the claimant’s sayings. However, when choosing his profession, the applicant left himself exposed to harsh criticism and close scrutiny; that is the burden that politicians bear in a democratic society.
In such circumstances, the present value judgments are not the reasons for limitation of the defendant’s rights under Article 10 of the Convention and for interference with freedom of speech by the State.”
On 25 June 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal on points of law.
B. Relevant domestic law
1. Constitution of Ukraine
Relevant extracts from the Constitution read as follows:
Article 32
“... Everyone is guaranteed judicial protection of the right to correction of unaccurate statements about himself or herself and members of his or her family, and of the right to demand that any type of statement be expunged, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect statements.”
Article 34
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
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 the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
2. Civil Code, 2003
Relevant extracts from the Civil Code read as follows:
Article 23. Compensation for non-pecuniary damage
“1. A person shall have the right to compensation for non-pecuniary damage in the event of an infringement of his/her rights.
2. Non-pecuniary damage may consist of:
...
4) humiliation and damage to the honour and dignity of a physical person, as well as the professional reputation of a physical or legal person...[defamation]...”
Article 277. Correction of untrue statements
“1. A physical person whose personality rights are breached as a result of inaccurate statements being disseminated about him or her shall be entitled to a response as well as to a correction of those statements.
...
3. The negative information disseminated about a person shall be considered as untruthful unless the person who has disseminated it can prove the opposite.
...
6. A person whose rights have been infringed ... shall have the right to a response and the publication of a correction in the same mass media source and in accordance with the procedure established by law.
...
Correction of untrue statements shall not depend on the actual guilt of the person who disseminated them.
7. Untrue statements shall be corrected in the same manner as they were disseminated.”
3. Information Act of 2 October 1992
The relevant extracts from the Information Act provide as follows:
Section 47. Liability for infringement of legislation on information
“...Liability for infringement of legislation on information shall be borne by persons responsible for the following infringements:
...dissemination of material that does not correspond to reality or 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, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truth need not be proved...”
COMPLAINTS
The applicant complained that the national courts had failed to protect his honour, dignity and reputation since he had never spoken out against the Crimean Tatars as alleged by the journalist A. In this respect he invoked Article 10 of the Convention. The applicant also complained under Article 6 of the Convention that the Supreme Court of Ukraine had failed to hold a public hearing in his case.
THE LAW
1. The applicant complained that by rejecting his defamation claim the national courts had failed to protect his honour, dignity and reputation. He relied on Article 10 of the Convention.
The Court notes at the outset that the applicant’s complaint cannot be dealt with under Article 10 of the Convention because his own freedom of expression was not at stake (see Karakó v. Hungary, no. 39311/05, § 31, 28 April 2009). There was no limitation upon his freedom of expression when he uttered or expressed his views. Insofar as the applicant complains about a failure to protect his honour, dignity and reputation, the Court considers that this complaint falls to be examined under Article 8 of the Convention, which provides, in so far as relevant:
“1. Everyone has the right to respect for his private ... life ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
It has already been accepted in the Court’s case-law that the State has positive obligations arising under Article 8 to ensure effective respect for the applicant’s private life, in particular his right to respect for his reputation (see Petrina v. Romania, no. 78060/01, §§ 35-36, 14 October 2008).
Where a question arises of interference with private life through publication in mass media, the State must find a proper balance between the two Convention rights involved, namely, the right to respect for private life guaranteed by Article 8 and the right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer v. Austria, no. 12556/03, § 38, ECHR 2007‑XII; Aleksey Petrov v. Bulgaria (dec.), no. 27103/04, 2 November 2010).
The Court’s task in exercising its supervision is not to take the place of the national authorities, but rather to review, in the light of the case as a whole, the decisions that they have taken pursuant to their margin of appreciation.
Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which must be narrowly interpreted and the strict necessity for any restriction must be convincingly and clearly established. Whilst the press must not overstep certain boundaries, it is nevertheless incumbent on it to impart information and ideas on all matters of public interest. In cases concerning debates or questions of general public interest, the extent of criticism is greater in respect of politicians or other public figures than in respect of private individuals: the former, unlike the latter, have voluntarily exposed themselves to a close scrutiny of their actions by both journalists and the general public and must therefore show a greater degree of tolerance (see Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Von Hannover v. Germany, no. 59320/00, § 58, ECHR 2004‑VI).
Journalistic freedom also covers possible recourse to some degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). Subject to Article 10 § 2, the right to impart information freely is applicable not only to “information” or “ideas” which are favourably received, but also to those which offend, shock or disturb; - such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24).
Finally, in its case-law the Court has distinguished between statements of fact and what are described as value judgments. While the existence of facts can be established by reference to empirical evidence, the truth of value judgments is not amenable to such methods of proof. Thus, any requirement to prove, by empirical methods, the truth of a value judgment is meaningless and infringes upon the very freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see, mutatis mutandis, Lingens, cited above, § 46).
In the present case, the applicant, being a member of the representative body of the ARC, is a public figure. His speech of 9 November 2004 concerned an important issue of general interest, namely, the problems related to the settlement of returned Crimean Tatars. The difficulties in social reintegration and adaptation of the Crimean Tatars have given rise to numerous debates, not only at the national level: there have also been reports from various international organisations on this subject (see, for example, Recommendation 1455 (2000) of the Parliamentary Assembly of the Council of Europe on Repatriation and Integration of the Tatars of Crimea).
In her article of 12 November 2004 the journalist covered the applicant’s speech of 9 November 2004. The national court concluded that the journalist was expressing her own critical attitude to what had been said and the Court reiterates that “a critical assessment of facts ... cannot serve as a basis for allowing compensation claims for psychological distress” (see, mutatis mutandis, Maraşli v. Turkey, no. 40077/98, § 17-19, 9 November 2004). In particular, the article contained no direct offensive accusations against the applicant and no hate speech as contended by him.
Furthermore, the Court bears in mind the positive obligation on the State to ensure that persons subjected to alleged defamation have a reasonable opportunity to exercise their right to reply by submitting a response to the defamatory information in the same medium as disseminated (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 90, ECHR 2003‑I; Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, DR 48, p. 154; and Earl Spencer and Countess Spencer v. the United Kingdom, nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, DR 25, p. 56). In the present case the applicant had the benefit of a right to reply. The newspaper published his letter in reply to the article of 12 November 2004, thus providing a forum for free discussion of matters of public interest.
As to the journalist’s second article, published on 8 July 2005 together with the applicant’s letter, the Court notes that the journalist incorporated in this article the full text of the applicant’s speech of 9 November 2004 and gave her opinion on this speech. The national court considered that the expressions used by the journalist on both occasions, though not favourable to the applicant, were value judgments. In the Court’s opinion, this type of exchange forms part of normal public debate.
The Court finally notes that in its decision of 30 January 2007 the Court of Appeal of the ARC has taken into consideration all of the abovementioned elements and properly balanced, in conformity with Convention standards, the applicant’s interest in protecting his reputation against the public’s interest in being informed about debates on matters of public importance.
Thus, the Court concludes that there has not been a failure on the part of the State to afford adequate protection of the applicant’s rights under Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. The applicant further relied on Article 6 of the Convention.
The Court, having examined the remainder of the applicant’s complaints, considers that, in the light of all the materials in its possession and in so far as the matters complained of were within its competence, they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that the remainder of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekDean Spielmann
RegistrarPresident
Full & Egal Universal Law Academy