FIFTH SECTION
DECISION
Application no. 17114/08
TELERADIOKOMPANIYA NBM
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 12 March 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 26 March 2008,
Having deliberated, decides as follows:
THE FACTS
1. The applicant company, Teleradiokompaniya NBM, is registered in Ukraine and owns a TV channel “5 Kanal” (“5th Channel”, hereafter – the Channel). It was represented before the Court by Mr O.E. Grabyezhov, residing in Kyiv.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant company, may be summarised as follows.
3. On 15 December 2005 two news programmes were broadcast on the Channel which contained the following piece of news (according to the text record provided by the applicant company):
Studio: “The criminal case on tax evasion by the Charitable Fund “Ukraine” headed by the ex-President of Ukraine, Leonid Kuchma, was transferred by the police to the State Tax Administration.
This information was shared with journalists of the “5 Kanal” by the Head of the State Tax Administration, K. According to him, it is too early to speak about the results of the investigation since it has just started.”
K.: “It is being verified whether or not the taxes were paid. While the Fund was a charitable one, it practically had no charitable activity. Out of tens of millions of charitable contributions, only 18,000 Ukrainian hryvnas were spent on charitable events. The rest was spent on purchasing and privatizing State property.”
Studio: “It is to be reminded that the Fund “Ukraine” started its activity last year. Its main aim is to provide support to talented youth. The law‑enforcement authorities now say that around four million United States dollars were not paid in taxes by the time of the Fund’s creation. According to the Ministry of Internal Affairs, the main share of the Fund’s money arrived from off-shore zones.”
Although requested by the Court’s Registry, the applicant company did not provide any video record of this piece of news, stating that it no longer existed.
4. In December 2005 the Charitable Fund “Ukraine” (hereafter – the Fund) requested the applicant company to refute the information as being untrue and defamatory.
5. In January 2006 the applicant company replied, refusing to refute the information in question. According to the applicant company, this information was shared with the Channel by K. It also used information published on Internet news sites: and with the reference to an interview of the Minister of Internal Affairs to a newspaper “Dzerkalo tyzhnya”.
6. In August 2006 the Fund instituted before a court defamation proceedings against the applicant company, claiming that the information about it and its activities disseminated in the news was untrue. The Fund requested that the Channel refute the information it had disseminated.
7. In support of its claims the Fund submitted a letter from the State Tax Administration (hereafter – the STA) saying that between January 2003 and January 2006 the press department of the STA had not provided any official information about the Fund to the mass media. It also referred to the judgment of the Pecherskyy District Court of 13 July 2006 in a case against another TV company which retranslated the same piece of news. It claimed that in this judgment the court established the precise wording of the news broadcast by the Channel and found the information disseminated untrue.
8. On 15 January 2007 the Kyiv Commercial Court found against the applicant company. Referring to the above judgment of the Pecherskyy District Court of 13 July 2006 it noted that the information about the transfer of a criminal case to the STA had already been found untrue. It also noted that no official information was published either by the STA or by the Ministry of Interior regarding the Fund, and that the comments by the journalist did not correspond to what was in fact said by K. Having examined the evidence submitted to it, the Kyiv Commercial Court held that the information about the Fund contained in the news broadcast by the Channel was untrue. The court ordered that the applicant company refute this information.
9. The applicant company appealed stating, inter alia, that the court could not rely upon the text of the piece of news taken from the judgment of the Pecherskyy District Court of 13 July 2006, and that no authentic record of the news programme of 15 December 2005 existed.
10. On 14 May 2007 the Kyiv Commercial Court of Appeal rejected the applicant company’s appeal reiterating, essentially, the first-instance court’s conclusions. The appellate court noted that the disputed text was available on the Channel’s official web-site and that the applicant company had failed to prove that it had received the disputed information from official sources.
11. On 24 May 2007 the applicant company appealed in cassation, its arguments being limited exclusively to the statement that the case should have been examined by a civil court instead of a commercial court. The applicant company, in particular, referred to the explanatory note of the Higher Court of Arbitration of Ukraine of 8 February 1996 no. 02-5/62 (hereafter – the Explanatory Note) providing that defamation cases could only be examined by commercial courts under certain conditions – which were, according to the applicant company, not met in the present case – and should otherwise be examined by civil courts.
12. On 2 October 2007 the Higher Commercial Court, having analysed the provisions of the Civil Code of Ukraine, the Commercial Procedural Code of Ukraine, the Laws of Ukraine “On Information”, “On Information Agencies”, “On Television and Radio broadcasting” as well as the Supreme Court’s decisions and information letters and notes of the higher courts, concluded that the commercial courts had jurisdiction to examine all disputes between two legal entities, excluding only those directly exempted by law (see paragraph 15 below).
13. The applicant company lodged a further appeal to the Supreme Court of Ukraine on the point of jurisdiction claiming that divergent case-law of the Higher Commercial Court existed on the above issue but without any reference to particular cases. It also argued that the programme’s authors or officials who had spread the information in question should have been involved in the proceedings in the first place, but this was not done as it was not possible under commercial law procedure. The applicant company further stated that the courts had not involved K. and the Minister of Internal Affairs in the proceedings despite the applicant company’s requests.
14. On 27 December 2007 the Supreme Court rejected the applicant’s request for leave to appeal in cassation as unsubstantiated.
B. Relevant domestic law
1. Commercial Procedural Code
15. Relevant provisions of the Commercial Procedural Code, in force at the material time, read as follows:
Article 1. The right to apply to a commercial court
“Enterprises, institutions, organizations, other legal entities (including foreign ones), citizens who carry out entrepreneurial activity without establishing a legal entity and who have, in the established procedure, acquired the status of a business entity (hereinafter - enterprises and organizations) have the right to apply to a commercial court in accordance with the established jurisdiction of commercial cases to protect their breached or disputed rights and interests protected by law, as well as to claim the adoption of measures provided for in this Code to prevent an offence.”
Article 12. Cases in which commercial courts have jurisdiction
“Commercial courts have jurisdiction for the following cases:
1) cases in disputes arising during the conclusion, change, termination and execution of commercial contracts, including with regard to property privatization, and those arising from other grounds, except for the:
disputes on the privatization of the state housing fund;
disputes arising from the harmonization of standards and specifications;
disputes regarding the setting of prices for products (goods), as well tariffs for services (performance of works), if according to the legislation these prices and tariffs cannot be established by an agreement of the parties;
disputes arising from public-law relations and assigned to the Constitutional Court of Ukraine and administrative courts;
other disputes, the resolution of which is assigned to other bodies in accordance with the laws of Ukraine and international treaties of Ukraine;
2) bankruptcy cases;
3) cases upon the complaints by the Antimonopoly Committee of Ukraine, the Chamber of Accounts on the issues within their competence as prescribed by the legislation;
4) cases arising out of corporate relations in disputes between an economic entity and its participant (founder, shareholder), including the participant whose membership was discontinued, as well as between the participants (founders, shareholders) of economic entities related to the creation, functioning, management and termination of the entity, except for labour disputes.”
Article 111-9. The powers of the court of cassation
“The court cassation, on the basis of the results of consideration of the cassation complaint (submission), has the right to:
1) leave the decision of the first-instance or the appellate court unchanged and the complaint (submission) without satisfaction;
2) quash the decision of the first-instance or the appellate court in full or in part and adopt a new decision;
3) quash the decision of the first-instance or the appellate court and transfer the case for a new consideration to the court of first instance, if the court committed violations stipulated by part two of Article 111-10 of this Code;
4) quash the decision of the first-instance or the appellate court in full or in part and to terminate the proceedings in the case or to leave the claim without consideration in full or in part;
5) change the decision of the first-instance or the appellate court;
6) to uphold one of the previously adopted decisions or resolutions.”
Article 111-15. Grounds for appeal to the Supreme Court of Ukraine against the rulings or decisions of the Higher Commercial Court of Ukraine
“The Supreme Court of Ukraine reviews in cassation the rulings or decisions of the Higher Commercial Court of Ukraine if they are challenged on the following grounds:
1) in case of use by the Higher Commercial Court of Ukraine of a law or other normative legal act that contradicts the Constitution of Ukraine;
2) in case of their non-compliance with the decisions of the Supreme Court of Ukraine or Higher Court of another specialisation on the matters of application of substantive law provisions;
3) in case of divergent application by the Higher Commercial Court of Ukraine of one and the same provision of the law or other normative legal act in similar cases;
3-1) in case of non-compliance of the rulings and decisions with the international instruments agreed upon by the Verkhovna Rada of Ukraine;
4) in case of finding by an international tribunal whose jurisdiction is recognised by Ukraine that the rulings or decisions violate international obligations of Ukraine.”
2. Legislation regulating the nature and legal force of explanatory notes issued by higher courts
16. Article 12 of the Law of Ukraine “On Arbitration Courts” (no. 1142‑XII, later renamed “On Commercial Courts”) provided that the Higher Court of Arbitration adopts explanatory notes as to the application of domestic law which are binding on the arbitration courts and participants to the proceedings. This provision was in force until 21 June 2001 and on 7 February 2002 the Law itself was repealed with the adoption of a new Law “On the Judicial System of Ukraine” (no. 3018-III).
17. According to Articles 39 and 44 of the Law “On the Judicial System of Ukraine” (no. 3018-III), in force at the time of events in the present case, higher specialised courts adopt recommendatory explanatory notes on the application of law in cases of the respective category.
3. Explanatory Note of the Higher Court of Arbitration of 8 February 1996 no. 02-5/62 “On certain issues regarding the jurisdiction of commercial courts” in force until 31 May 2007
18. Relevant provisions of the Explanatory Note, in force at the material time, read as follows:
“...
2.10. Cases related to the refutation of untrue or falsified information damaging business reputation of enterprises or organizations or detrimental to their interests (Article 7 of the Civil Code of Ukraine), shall fall under the jurisdiction of general and not commercial courts.
Cases on compensation for non-pecuniary damage caused by the dissemination of such information by the mass media may be considered by commercial courts only if the former have not provided the plaintiff with information about the author and, therefore, have assumed the responsibility for the dissemination of information, and conditional upon the advance (...) refutation of such information [under a decision of] a general court or by the media itself at the request of the applicant. Evidence of such refutation shall be attached to the relevant claim. In the absence of such evidence, the commercial court shall return the claim on the basis of paragraph 3 of Article 63 of the Commercial Procedural Code of Ukraine, and if the case had already been opened - leave it without consideration in accordance with paragraph 5 of Article 81 of the Code. ...”
19. On 31 May 2007 by its Recommendation no. 04-5/103 the Higher Commercial Court of Ukraine definitively abolished the Explanatory Note without setting any transitional provisions. On 27 February 2009 the Supreme Court of Ukraine by the Resolution of its Plenum no. 1 “On court practice in the cases on protection of dignity and honour of individuals and of business reputation of individuals and organizations” defined that such disputes between legal entities shall be examined by commercial courts.
COMPLAINTS
20. The applicant company complained, referring to the Explanatory Note, that the commercial courts had no jurisdiction to examine its case. In this respect the applicant company invoked Article 6 of the Convention.
21. It further complained of a violation of Article 10 of the Convention stating that the interference with its freedom of expression was unlawful and unnecessary in a democratic society.
THE LAW
A. Complaint under Article 6 of the Convention
22. The applicant company complained, referring to the Explanatory Note, that the commercial courts had no jurisdiction to examine its case. In this respect it invoked Article 6 of the Convention, which provides, insofar as relevant, as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law...”
23. The Court reiterates that, under Article 6 § 1, a “tribunal” must always be “established by law”. This phrase covers not only the legal basis for the very existence of a “tribunal”, but also compliance by the tribunal with the particular rules that govern it, including the matters coming within the jurisdiction of a certain category of courts (see Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002; Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, § 24, 20 July 2006 and Zand v. Austria, application no. 7360/76, report of the Commission of 12 October 1978, D.R. 15, p. 70).
24. The object of the term “established by law” in Article 6 of the Convention is to ensure “that the judicial organisation in a democratic society does not depend on the discretion of the executive, but that it is regulated by law emanating from Parliament” (see Zand, cited above, ibid.). Also, in countries where the law is codified, the organisation of the judicial system cannot be left to the discretion of the judicial authorities, although this does not mean that the courts do not have some latitude to interpret relevant domestic legislation (see Coëme and Others v. Belgium, no. 32492/96 and 4 others, § 98, ECHR 2000‑VII and Savino and Others v. Italy, no. 17214/05 and 2 others, § 94, 28 April 2009).
25. In principle, a violation by a tribunal of domestic legal provisions relating to the establishment and competence of judicial organs gives rise to a violation of Article 6 § 1. The Court may therefore examine whether the domestic law has been complied with in this respect. However, having regard to the general principle that it is, in the first place, for the national courts themselves to interpret the provisions of domestic law, the Court finds that it may not question their interpretation unless there has been a flagrant violation of domestic law (see, mutatis mutandis, DMD GROUP, a.s., v. Slovakia, no. 19334/03, § 61, 5 October 2010; Lavents, cited above, ibid. and Coëme and Others, cited above, § 98 in fine).
26. Turning to the present case, the Court notes that in support of its complaints the applicant company mainly relied on the provisions of the Explanatory Note of the Higher Arbitration Court of Ukraine of 1996. The Court observes that the legal force of the explanatory notes of the higher courts changed over time and at the time of events they were no longer binding on the domestic courts (see paragraphs 15 and 17 above).
27. The Court further notes that the applicant company raised the issue of jurisdiction with reference to the Explanatory Note for the first time in its cassation appeal of 24 May 2007. By the time of adoption of the decision by the Higher Commercial Court on 27 December 2007 the Explanatory Note was no longer in force. Confronted with the question of jurisdiction in this situation the Higher Commercial Court, having analysed the relevant legislative provisions, found that commercial courts had jurisdiction to examine all cases between legal entities except for those directly exempted by law. As the defamation cases were not on the exempted cases list it found that the applicant company’s case could be examined by the commercial courts.
28. The Court is also mindful of the fact that in 2009 the Supreme Court of Ukraine acknowledged in the Resolution of its Plenum (see paragraph 19 above) that the defamation cases between two legal entities were to be examined by commercial courts.
29. In view of the above the Court perceives no flagrant breach of the legislation in the assessment made by the Higher Commercial Court in its decision of 27 December 2007.
30. 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.
B. Complaint under Article 10 of the Convention
31. The applicant company complained of a violation of Article 10 of the Convention stating that the interference with its rights had been unlawful and unnecessary in a democratic society. The invoked Article provides 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
32. The Court reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The complaints intended to be lodged with the Court should have been raised before the domestic judicial authorities, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I). A failure to comply with such requirements may lead to a finding that domestic remedies have not been exhausted (see, among many other authorities, MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005‑XI).
33. The Court previously held that an appeal in cassation in the Ukrainian commercial procedure has been an effective remedy within the meaning of Article 35 § 1 of the Convention, and therefore has to be exhausted (see MPP Golub v. Ukraine, cited above).
34. In the present case the applicant company submitted a cassation appeal before the Higher Commercial Court of Ukraine. However, in its cassation appeal the applicant company relied exclusively on the questions of jurisdiction of the commercial courts and did not advance any other arguments as to the merits of the case – that is dissemination of untrue information.
35. The Court notes in this respect that in order to comply with the exhaustion requirement, the applicant company should have raised its complaints concerning the alleged interference with its freedom of expression throughout the proceedings, including in its cassation appeal to the Higher Commercial Court of Ukraine, which had powers either to quash the lower courts’ judgments and adopt a new judgment or to order a re‑examination of the case. Having regard to the limited jurisdiction of the Supreme Court of Ukraine at the time of events (see paragraph 15 above) the applicant company’s further appeal to it was futile from the point of view of the alleged lack of jurisdiction of the commercial courts.
36. The applicant’s complaints under Article 10 of the Convention should therefore be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 April 2019.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy