FIFTH SECTION CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE (Application no. 61561/08) JUDGMENT STRASBOURG 2 June 2016 This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be sub ject to editorial revision.
21
Embed
Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
2 INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT
dailies in Ukraine by circulation and was closely associated with Ms Yuliya
Tymoshenko, a political leader.
6. In the 1990s Ms Ganna German worked as a newspaper journalist inLviv. In the early 2000s she headed the Kyiv bureau of Radio Free
Europe/Radio Liberty. In 2004 she became a spokesperson for the then-
Prime Minister, Victor Yanukovych, a move which was widely perceived as
constituting a significant change of sides in the political debate on
Ms German’s part. In May 2006 she was elected as a member of parliament
on the list of the Party of Regions, led by Mr Yanukovych. At the material
time she frequently presented her party’s and Mr Yanukovych’s views on
various television and radio programmes and debates.
7. On 2 April 2007 the President of Ukraine issued a decree dissolving
Parliament. This decree led to an acute constitutional crisis, with the
parliamentary majority, grouped around the Party of Regions, initiallyrefusing to comply with the decree. Fresh parliamentary elections were
originally scheduled for 27 May 2007 but were postponed; they eventually
took place on 30 September 2007. Political parties led by Mr Yanukovych
and Ms Tymoshenko won the largest numbers of votes.
B. Impugned article
8. On 21 May 2007 Evening News published an article entitled “How I
became a victim of demagogues” ( Как я стал жертвой демагогов)
written by Mr I. Tkalenko (“the author”).9. The relevant extracts from the article read as follows:
“On Friday evening Yuliya Tymoshenko almost lost one of her fans ... I amembarrassed to admit that I almost went over to Yanukovych’s side ...
And it’s Ganna German’s fault. She was talking live on BBC radio and she almost
persuaded me. She said that they had eleven million supporters in Ukraine and that the
party numbered one million members. I was dumbfounded!
And of course I was impressed by her eloquence. How beautifully she speaks, what
a well-trained voice and proper intonation she has. She uses not only words but
intonation, communicating non-verbally as well ... Of course, she is such a
professional ...
I thought that after her speech another five hundred thousand would join the Party ofRegions. I used to think that one could easily debate with Ganna German. I put myselfin Ganna German’s position and it seemed that she must be feeling very
uncomfortable.
I thoughtlessly believed that the question “Ms Ganna, what are you doing in this
gang?” should make her blush and lower her gaze. She, a nationalist, should beashamed to belong to this group of Ukraine haters ( украиноненавистническую
компанию).
Ms Ganna dropped hints about not being a rich person, which means that money
was evidently not the least motivation for her decision to work for Yanukovych. And
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT 3
although she does it for money, she does it with such devoted artistry that it made me
want to cry out, contrary to Stanislavsky: “I believe you! Ms Ganna, I believe you!”
I did almost believe her.
As a journalist and someone who knows Ganna personally, and someone who has
even learned from her (I learned from her how not to write), I have constantly tried to
put myself in her position.
I certainly understand, Ms Ganna, that it’s about the money ...
But it can’t be that kind of money! A thousand, really? A thousand bucks? Or more?
I think any Ukrainian journalist would sell himself to Yanukovych for that much
money – for a thousand bucks. I don’t even know if I myself would be able to resist.
What would I say to my wife, to my friends? I would say: “You don’t know
Yanukovych. I know Victor Fyodorovich personally. I have talked with him a lot. He
is a great guy ...”
What if I were given more than a thousand bucks a month? And [if I had an offer] to
become a member of parliament, as in Ganna German’s case? That is, for a flat in
Kyiv? I believe that all journalists dream of selling themselves for a flat in Kyiv, even
those who already have one. One does not have to do anything complicated for this.
One just has to say, with beautiful diction and intonation, that Yanukovych is a lost
sheep that has finally found the right path and constantly thanks God for it ...
...
I could also say those things. For a flat in Kyiv. And many other simple country
guys could say those things for a flat in Kyiv. The problem is, however, that
Yanukovich wouldn’t give just anyone a flat in Kyiv. We don ’t have many stars, like
Ganna German, [whose worth is] that of a flat in Kyiv ( Мало у нас таких звезд , как
Анна Герман , которые стоят , как квартира в Киеве). By the way, for the cost ofan MP’s flat one could maintain the editorial staff of a daily newspaper for five to ten
years (depending on what kind of flat it is). And each and every one of them would
write about what criminals and falsifiers the members of the Orange Party are and
what a wise, honest and principled man our Victor Fyodorovich is.
...
I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell
myself like that! That is of course the highest point in a journalist ’s career. Not even
for a flat. At least ten thousand bucks, but all in one go. Alright, for five thousand.
Even three. Or for a monthly salary of eight hundred dollars. And I am wholly yours.
Or at least six hundred ... But no less than five hundred.
...
All of this is a joke. Pardon me for ... the irony. This is irony, although somebody
may consider it sarcasm. No, it isn’t sarcasm.
According to [the] Ozhegov [dictionary], “demagoguery” is “influencing thefeelings and instincts of those with low-level awareness on the basis of the deliberate
distortion of facts”. For a long time I suffered from not being able to argue with suchdemagogues as Ganna German, Taras Chornovil, Kinakh, and all the [members of the
Party of Regions] and communists. It is not possible to argue logically with them. An
intelligent man can hardly stay emotionally composed listening to them.
When I was on Shuster ’s [television programme], [fellow guest] Zhvaniya gave me
a tip. It’s irony. The thing is that demagoguery requires artistry. An intelligent man
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
10 INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT
domestic courts had obliged the applicant company to retract a statement
which had been a value judgment rather than a statement of fact. According
to the applicant company, this was evidenced by the satirical form of thearticle and the linguistic tools – notably hyperbole and allegory – used in it.
The impugned paragraphs in the article had been merely an expression of
the author ’s wondering about the motives which had led Ms German, a
former Ukrainian nationalist, to change her political opinions. The author
had not had the requisite intent of spreading false information about
Ms German. The applicant company also submitted that the requirement to
publish the text of the domestic court’s judgment instead of a “retraction”
had been contrary to Section 37 of the Press Act.
31. The Government agreed that the judgments of the domestic courts
had constituted an interference with the applicant company’s freedom of
expression. However, they considered that the interference had been prescribed by law, being based on the relevant provisions of the Civil Code
and the Information Act. It had pursued the legitimate aim of protecting the
reputation or rights of others.
32. As to the necessity of the interference, the Government submitted
that the domestic courts had carefully analysed the context of the author ’sstatements, finding that only one paragraph in his article had contained a
statement of fact and that the other paragraphs about which the plaintiff had
complained had contained value judgments. According to the findings of the
domestic courts, that paragraph contained the assertion that Ms German had
become a member of parliament in order to obtain a flat in Kyiv. The
domestic courts had found this to be untrue. The Government referred to the
Court’s judgment in Lindon, Otchakovsky-Laurens and July v. France
([GC], nos. 21279/02 and 36448/02, § 57, ECHR 2007-IV), according to
which “regardless of the forcefulness of political struggles, it is legitimate to
try to ensure that they abide by a minimum degree of moderation and
propriety, especially as the reputation of a politician, even a controversial
one, must benefit from the protection afforded by the Convention”. The
Government also referred to the Court’s decision in Vitrenko and Others
v. Ukraine (no. 23510/02, 16 December 2008), which, according to the
Government, supported the principle that even during an election campaign
an individual could not be subjected to unfair accusations by his opponent.The applicant company had submitted its arguments to the Court of Appeal
and the Supreme Court, which had rejected them. In such circumstances, it
was not the Court’s task to review their findings as a court of fourth
instance.
33. The Government also submitted that the interference had been
proportionate and had not put an undue burden on the applicant company.
The domestic courts’ decisions were part of the State’s compliance with its
positive obligation to ensure that those subjected to defamation had a
reasonable opportunity to reply.
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT 11
2. The Court ’ s assessment
34. The Court finds, and this is not in dispute between the parties, that
the domestic courts’ decisions constituted an interference with the applicant
company’s right to freedom of expression. Such interference will breach the
Convention if it fails to satisfy the criteria set out in paragraph 2 of
Article 10. The Court must therefore determine whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims listed in that
paragraph and whether it was “necessary in a democratic society” in order
to achieve that aim or aims.
(a) “Prescribed by law”
35. The Court observes that the interference in question had a basis in
the provisions of the Civil Code and of the Information Act (see paragraphs 20 and 21 above).
36. The applicant company argued that the requirement imposed on it –
to publish the operative part of the first-instance court’s judgment (as
opposed to a specifically formulated “retraction”) – contradicted section 37
of the Press Act. The Court observes that the applicant company did not
explain, either in its submissions before the domestic courts or before the
Court, why it believed this requirement had contradicted the Press Act.
37. The Court observes that it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law (see, for
example, Lehideux and Isorni v. France, 23 September 1998, § 50, Reports
of Judgments and Decisions 1998-VII). In the absence of any detailedsubmissions by the applicant company on this point, the Court is unable to
perceive anything in the case file or in the wording of the Press Act itself
which would indicate that the domestic court’s interpretation of the relevant
provision was arbitrary or manifestly unreasonable. In this connection the
Court observes that the domestic courts’ interpretation of the Act was
consistent with resolutions of the Plenary Supreme Court of 1990 and 2009
(see paragraphs 26 and 27 above).
38. Having regard to its own case-law (see, for example, Markt Intern
Verlag GmbH and Klaus Beermann v. Germany, judgment of 20 November
1989, Series A no. 165, p. 18, § 30, and Müller and Others v. Switzerland ,
judgment of 24 May 1988, Series A no. 133 p. 20, § 29), the Courtconsiders that the relevant provisions of the Civil Code and the Information
Act, as applied by the domestic courts in the present case, complied with the
requirements of “foreseeability”.
39. Moreover, the main thrust of the applicant company’s submissions in
this respect, both before the domestic courts and this Court, appears to be
that the failure to formulate a specific retraction supported the applicant
company’s argument that the statements the domestic courts found to be
untrue were in fact value judgments rather than statements of fact. This
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
12 INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT
argument concerns the issue of whether the interference was “necessary in ademocratic society” (see, mutatis mutandis, Ukrainian Media Group, cited
above, § 50, and Gazeta Ukraina-Tsentr v. Ukraine, no. 16695/04, § 48,15 July 2010).
40. In the light of these considerations, the Court considers that the
interference was prescribed by law within the meaning of Article 10 § 2 of
the Convention.
(b) “Legitimate aim”
41. The Court agrees with the Government’s submission, which was not
contested by the applicant, that the interference pursued the legitimate aim
of protecting the reputation and rights of others, namely Ms German.
(c) “Necessary in a democratic society”
(i) General principles
42. The fundamental principles concerning the question of whether an
interference with freedom of expression is “necessary in a democraticsociety” are well established in the Court’s case-law and have recently been
summarised as follows (see Delfi AS v. Estonia [GC], no. 64569/09, § 131,
16 June 2015, with further references):
“(i) Freedom of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress and for each
individual’s self-fulfillment. Subject to paragraph 2 of Article 10, it is applicable not
only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensiveor as a matter of indifference, but also to those that offend, shock or disturb. Such are
the demands of pluralism, tolerance and broadmindedness without which there is no
‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions,
which ... must, however, be construed strictly, and the need for any restrictions must
be established convincingly ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the
existence of a ‘ pressing social need’. The Contracting States have a certain margin of
appreciation in assessing whether such a need exists, but it goes hand in hand with
European supervision, embracing both the legislation and the decisions applying it,
even those given by an independent court. The Court is therefore empowered to give
the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression
as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the
place of the competent national authorities but rather to review under Article 10 the
decisions they delivered pursuant to their power of appreciation. This does not mean
that the supervision is limited to ascertaining whether the respondent State exercised
its discretion reasonably, carefully and in good faith; what the Court has to do is to
look at the interference complained of in the light of the case as a whole and
determine whether it was ‘ proportionate to the legitimate aim pursued’ and whether
the reasons adduced by the national authorities to justify it are ‘relevant and
sufficient’... In doing so, the Court has to satisfy itself that the national authorities
applied standards which were in conformity with the principles embodied in Article
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT 13
10 and, moreover, that they relied on an acceptable assessment of the relevant facts
...”
43. The Court also reiterates that the press fulfills an essential function ina democratic society. Although the press must not overstep certain bounds
regarding in particular the protection of the reputation and rights of others,
its duty is nevertheless to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all matters of
public interest. Not only does the press have the task of imparting such
information and ideas; the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of “public
watchdog” (see Axel Springer AG v. Germany (no. 2), no. 48311/10, § 55,
10 July 2014, with further references). Freedom of expression is applicable
not only to “information” or “ideas” that are favourably received or
regarded as inoffensive or as a matter of indifference, but also to those thatoffend, shock or disturb the State or any section of the community.
Journalistic freedom also covers possible recourse to a degree of
exaggeration, or even provocation (see Prager and Oberschlick v. Austria,
26 April 1995, § 38, Series A no. 313).
44. Moreover, as regards the level of protection, there is little scope
under Article 10 § 2 of the Convention for restrictions on political speech or
debate on matters of public interest (see Sürek v. Turkey (no. 1) [GC],
no. 26682/95, § 61, ECHR 1999-IV). Accordingly, a high level of
protection of freedom of expression, with the authorities thus having a
particularly narrow margin of appreciation, will normally be accordedwhere the remarks concern a matter of public interest (see Morice v. France
[GC], no. 29369/10, § 125, 23 April 2015). Moreover, the limits of
acceptable criticism are wider in respect of a politician than a private
individual. Unlike the latter, the former inevitably and knowingly lays
himself open to close scrutiny of his words and deeds by journalists and the
public at large, and he must consequently display a greater degree of
tolerance. A politician is certainly entitled to have his reputation protected,
even when he is not acting in his private capacity, but in such cases the
requirements of that protection have to be weighed against the interests of
the open discussion of political issues (see Lingens v. Austria, 8 July 1986,
§ 42, Series A no. 103).45. Furthermore, the Court in its case-law draws a distinction between
statements of fact and value judgments. The existence of facts can be
demonstrated, whereas the truth of value judgments is not susceptible of
proof. The requirement to prove the truth of a value judgment is impossible
to fulfil and infringes freedom of opinion itself, which is a fundamental part
of the right secured by Article 10 (see Lingens, cited above, § 46). However,
where a statement amounts to a value judgment, the proportionality of an
interference may depend on whether there exists a sufficient “factual basis”
for the impugned statement, failing which it will be excessive (see Lindon,
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine
INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT 15
Morice, cited above, § 125, and Kharlamov v. Russia, no. 27447/07, § 33,
8 October 2015).
51. As to the content of the impugned statements, the Court notes thatthe first-instance court, whose reasoning was upheld without discussion by
the superior courts, considered that two sentences in the impugned article,
taken together, constituted a statement of fact, namely: “And [if I had an
offer] to become a member of parliament, as in Ganna German ’s case? That
is, for a flat in Kyiv?” and “The problem is, however, that Yanukovych
wouldn’t give anyone a flat in Kyiv. We don’t have many stars, like Ganna
German, [whose worth is] that of a flat in Kyiv”.
52. The domestic courts found that these statements constituted an
affirmation that Ms German had become a member of parliament with the
sole purpose of obtaining a flat in Kyiv. They also concluded that these
statements could not be considered value judgments because the only possible basis for them could be the actual information as to whether or not
Ms German claimed housing support in her capacity as a member of
parliament. The domestic courts established – and this was never challenged
by the applicant company or the author – that Ms German had never
claimed her entitlement to housing support and that neither the author nor
the applicant company had ever attempted to verify whether she had. On
this basis, the domestic courts concluded that the statement in question was
untrue.
53. The Court notes with satisfaction that the domestic courts
endeavored to distinguish between statements of fact and value judgments
in the impugned article. However, particularly in view of the limited scope
of their reasoning in this respect, the Court is unconvinced by their approach
and cannot share their conclusion for two reasons.
54. Firstly, the Court observes that the domestic courts failed to
comment on the satirical tone of the impugned statements (compare
Standard Verlags GmbH v. Austria, no. 13071/03, § 51, 2 November 2006,
and Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25,
22 February 2007). Moreover, it appears that no consideration was given to
the structure of the article as a whole, most notably the author ’s explicit
reference to his statements being “jokes”, “ironic” or “sarcastic”. In fact, the
entire closing part of the article was dedicated to explaining the exaggeratednature of its first part, which included in particular the statements found to
be untrue and defamatory. However, the domestic courts appear to have
taken these statements in isolation, removed from this context (compare, for
example, Dichand and Others v. Austria, no. 29271/95, § 46, 26 February
2002).
55. Secondly, the domestic courts did not comment on the overall
context of the public debate in which the statements had been made and
their subject matter (compare Scharsach and News Verlagsgesellschaft
v. Austria, no. 39394/98, § 38, ECHR 2003-XI). In this context it reiterates
8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine