case of instytut ekonomichnykh reform, tov v. ukraine

8/15/2019 Case of Instytut Ekonomichnykh Reform, Tov v. Ukraine

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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 subject to editorial revision.



INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE JUDGMENT 1

In the case of Instytut Ekonomichnykh Reform, TOV v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a

Chamber composed of:Angelika Nußberger, President,

Ganna Yudkivska,

Khanlar Hajiyev,

André Potocki,

Yonko Grozev,

Síofra O’Leary,

Mārtiņš Mits, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 26 April 2016,

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

PROCEDURE

1. The case originated in an application (no. 61561/08) against Ukraine

lodged with the Court under Article 34 of the Convention for the Protection

of Human Rights and Fundamental Freedoms (“the Convention”) by

Instytut Ekonomichnykh Reform TOV (“the applicant company”), on

8 December 2008.

2. The applicant company was represented by Ms G.G. Sovenko, a

lawyer practising in Zhovti Vody. The Ukrainian Government (“theGovernment”) were represented most recently by their Acting Agent,

Ms O. Davydchuk, of the Ministry of Justice.

3. The applicant company alleged that its right to freedom of expression

had been breached.

4. On 2 March 2011 the application was communicated to the

Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

5. The applicant company, Instytut Ekonomichnykh Reform (a limited

liability company), is the editorial body of the Evening News newspaper

( Вечерние Вести), registered in Ukraine. According to the applicant

company, at the material time the newspaper was one of the top nationwide



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




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




can feel the falsity but cannot put his finger on it. At this point you need irony to make

the demagogue’s statements sound absurd ...”

C. Defamation proceedings

10. On 18 July 2007 Ms German lodged a defamation claim with the

Kyiv Pecherskyy District Court against the applicant company and the

article’s author. She sought a retraction – in the form of the publication of a

court judgment in her favour – of the allegedly false statements made in the

article concerning her alleged acquisition of a flat,. She also sought

compensation for non-pecuniary damage. The applicant company

maintained that the statements in question had constituted a value judgment

in respect of the legal provision entitling members of parliament to housing

support.11. On 18 December 2007 the District Court allowed the plaintiff ’s

claims in part. It found that the following extracts constituted an untrue

statement:

“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? ...

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.”

12. The court found that the plaintiff had not requested or received a flat

in her capacity as a member of parliament; she had bought her own flat in

2001, before she had been elected. The court considered that the abovestatements suggested that the plaintiff had become a member of parliament

for the sole purpose of obtaining a flat in Kyiv. In the court ’s view this was

not a value judgment because only concrete information as to whether

Ms German had exercised her entitlement to housing support could serve as

the basis for such statements. Rather, the statements in question constituted

statements of fact which had not been verified or proved by either of the

defendants, and were negative and insulting to the plaintiff.

13. Relying in particular on the provisions of the Civil Code and of the

Information Act and referring to the constitutional provision guaranteeing

respect for private life (see paragraphs 20 and 21 below), the court ordered

the applicant company to retract this information by publishing theoperative part of its judgment and to pay the plaintiff 1,700 Ukrainian

hryvnias (UAH, approximately 300 euros (EUR) at the time) in

compensation for non-pecuniary damage.

14. The court also found that the following extract constituted a value

judgment on the author ’s part and rejected the claim in this respect:

“What if I were given more than a thousand bucks a month? ... I believe that all

journalists dream of selling themselves for a flat in Kyiv, even those who already have

one ... I listened to Ganna German and I wish I were as lucky as she is. I wish I could

sell myself like that!”




15. The applicant company appealed, arguing, in particular, that the

statement in question had been an expression of the author ’s opinion. In

particular, he had wondered what could have induced Ms German, “aformer nationalist”, to change her political sympathies. Being aware that the

Member of Parliament’s Status Act provided for housing support, the author

speculated that he might be willing to change his views in exchange for a

flat in Kyiv. For the applicant company, the lack of coherence in the

plaintiff ’s demand that a subjective opinion be retracted was illustrated by

the fact that the plaintiff and the first-instance court had been unable to

formulate a specific statement of retraction and had resorted to the

requirement to publish the text of the judgment itself. For the applicant

company, the plaintiff ’s failure to formulate a specific retraction illustrated

the rationale behind section 47-1 of the Information Act, under which value

judgments were not subject to retraction. The applicant company arguedthat the requirement to retract the statement by publishing the text of the

court judgment contradicted section 37 of the Press Act. The applicant

company also argued that the author had not had the requisite intent to

disseminate untrue information. In support of its arguments it invoked the

constitutional provision guaranteeing the freedom of expression.

16. On 28 February 2008 the Kyiv City Court of Appeal upheld the

judgment of 18 December 2007, finding the applicant company’s arguments

unsubstantiated and the District Court’s conclusions correct.

17. The applicant company appealed on points of law. In addition to

reiterating the arguments it had raised on appeal, it referred to the Court’s judgments in Ukrainian Media Group v. Ukraine (no. 72713/01, 29 March

2005), and De Haes and Gijsels v. Belgium (24 February 1997, Reports of

Judgments and Decisions 1997-I), arguing that according to the Court’s

case-law the limits of acceptable criticism were wider with regard to a

politician than in relation to a private individual and that such criticism

could include recourse to a degree of exaggeration, or even provocation.

18. On 23 May 2008 the Supreme Court found no grounds to review the

case on points of law, finding that there were no reasons to believe that the

lower courts’ decisions had breached any provisions of substantive or

procedural law.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution of Ukraine

19. Articles 32 and 34 of the Constitution provide as follows:

Article 32

“There shall be no interference with private and family life, unless as provided by

the Constitution of Ukraine.




Confidential information about a person shall not be collected, stored, used or

disseminated without the person’s consent, unless in so far as provided by law in the

interests of national security, economic well-being and human rights.

...

Everyone shall be guaranteed judicial protection of the right to rectify untrue

information about himself or herself and members of his or her family, and of the

right to demand that any type of information be rectified, and also the right to

compensation for pecuniary and non-pecuniary damage inflicted by the collection,

storage, use and dissemination of such incorrect information.”

Article 34

“Everyone shall be guaranteed the right to freedom of thought and speech, and to

the free expression of his or her views and beliefs.

...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 public health, the reputation or rights of others,

prevention of the publication of information received confidentially, or maintaining

the authority and impartiality of the judiciary.”

B. Civil Code of 16 January 2003

20. Article 277 and 1167 of the Code provide:

Article 277

Retraction of untrue information

“1. An individual whose non-pecuniary rights have been infringed as a result of the

dissemination of untrue information about him or her and (or) members of his or her

family shall have the right to reply and [the right to] the retraction of that information

...

...

6. An individual whose non-pecuniary rights have been infringed in printed or other

mass media shall have the right to reply to, and also [the right to] the retraction of,

untrue information in the same mass media, in the manner envisaged by law ...

Untrue information shall be retracted, irrespective of the guilt of the person who

disseminated it.

7. Untrue information shall be retracted in the same manner as that in which it was

disseminated.”

Article 1167

Grounds of Responsibility for Non-Pecuniary Damage

“1. Non-pecuniary damage caused to an individual or legal person by illegal

decisions, acts or inaction shall be compensated by the person who caused it, if that

person [has the requisite state of mind for a civil tort]. ...”




C. Information Act of 2 October 1992

21. Sections 47 and 47-1 of the Act provide as follows:

Section 47. Liability for infringement of the legislation on information

“...

Liability for infringement of the legislation on information shall be borne by persons

responsible for the following infringements:

...

dissemination of information that does not correspond to reality, that 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, 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 proved ...”

D. Press Act of 16 November 1992

22. Section 37 of the Act provides as follows:

Section 37. Retraction of information

“Citizens, legal entities and State organs, and their legal representatives, shall have

the right to demand that the editorial board of [a publication] publish a retraction of

information disseminated about them which does not correspond to reality or defames

their honour and dignity.

If the editorial board does not have any evidence that the content published by it is

accurate, it must, if requested by the claimant, publish a retraction of such information

in [its] next issue ... or publish such a retraction on its own initiative.

The retraction shall be printed in the same font and should be inserted under the

heading “Retraction” in the same column where the information being retracted was

published.

...”

E. Member of Parliament’s Status Act of 17 November 1992

23. Under Section 35 of the Act, as worded at the material time, a

member of parliament, regardless of his place of residence, had to be

provided with proper housing. To this end the member could be provided

with a lump sum allowance covering the cost of a dwelling in Kyiv, a

dwelling made available for his term of office, or a permanent dwelling. The




cost was to be financed from Parliament’s budgetary appropriations. To

claim the entitlement, a newly elected or re-elected member had to submit

an application with the relevant parliamentary committee within threemonths of commencing his or her functions.

24. Sections 20, 30, 31 and 33 of the Act also provided for a number of

other entitlements for members of parliament, including State-financed

disability, life insurance and medical care, monthly pay at the level of

ministers, severance allowance on leaving the office, increased pension, the

costs of continuing education, and travel and recreational expenses.

F. State Support of Mass Media and Social Protection of Journalists

Act of 23 September 1997

25. The Act provides in the relevant parts as follows:

Section 17. Liability for trespass or other actions against the life and health of a

journalist and a journalist’s liability for non-pecuniary damage caused by him

“In the process of consideration by a court of a dispute concerning non-pecuniary

damage between a journalist or other [mass media professional], as the defendant, and

a political party, electoral bloc, [or] an office holder (or office holders), as the

plaintiff, a court may award compensation in respect of non-pecuniary damage only if

the journalist or media professional [acted] with intent. The court shall take into

account the outcome of the use by the claimant of extrajudicial – and in particular

pre-trial – opportunities to obtain a retraction of the untrue material, defend his

honour, dignity and reputation, and settle the dispute. Having regard to the

circumstances, the court may refuse [to award] compensation in respect ofnon-pecuniary damage.

The intent of the journalist and/or official of the media organisation means his or

their stance in regard to the dissemination of information when the journalist and/or

official of the media organisation are aware of the untruthfulness (недостовірність)

of such information and have anticipated its socially injurious consequences.

The journalist and/or [mass media professional] shall be released from liability for

the dissemination of information that does not correspond to reality if the court

establishes that the journalist acted in good faith and checked the information.”

G. Resolution no. 7 of the Plenary Supreme Court of 28 September

1990 on judicial practice in defamation cases (repealed on27 February 2009)

26. Under paragraph 9 of the Resolution, when ordering a retraction on

radio or television, a court could require an announcer to read the operative

part of the judgment during the same programme or series of programmes

and at the same hour. It was unacceptable for media organisations to edit the

text of the judgment or to comment on it in a way that would amount to a

challenge of the judgment.




H. Resolution no. 1 of the Plenary Supreme Court of 27 February

2009 on judicial practice in defamation cases

27. Under paragraph 24 of the Resolution, if a court adopts a judgment

ordering the retraction of disseminated information, it may, if necessary, set

forth in the judgment the wording of that retraction or indicate that the

retraction shall be carried out by means of notifying the parties to the

dispute and third parties of the judgment, including by the publishing of its

text.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

28. The applicant company complained of a violation of its right to

freedom of expression under Article 10 of the Convention, which reads in

its relevant parts 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 ...

2. 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 ... for the protection of thereputation or rights of others ...”

A. Admissibility

29. The Court notes that the application is not manifestly ill-founded

within the meaning of Article 35 § 3 (a) of the Convention. It further notes

that it is not inadmissible on any other grounds. It must therefore be

declared admissible.

B. Merits

1. The parties’ submissions

30. The applicant company submitted that Evening News was a

newspaper dedicated to matters of society and politics. Its editorial board

supported the political views of Yuliya Tymoshenko. In addition to factual

information, the newspaper published diverse opinion pieces and polemical

articles. It was above all such opinion pieces and analytics which

distinguished the newspaper from other media outlets. The interference in

this case therefore went to the heart of the newspaper ’s activities. The




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.




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




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




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,




Otchakovsky-Laurens and July, cited above, § 55). In order to distinguish

between a factual allegation and a value judgment it is necessary to take

account of the circumstances of the case and the general tone of the remarks(see Brasilier v. France, no. 71343/01, § 37, 11 April 2006), bearing in

mind that assertions about matters of public interest may, on that basis,

constitute value judgments rather than statements of fact (see Paturel v.

France, no. 54968/00, § 37, 22 December 2005).

46. Satire is a form of artistic expression and social commentary and, by

its inherent features of exaggeration and distortion of reality, naturally aims

to provoke and agitate. Accordingly, any interference with an artist’s or

social commentator ’s right to such expression must be examined with

particular care (see Vereinigung Bildender Künstler v. Austria,

no. 68354/01, § 33, 25 January 2007; Alves da Silva v. Portugal , no.

41665/07, § 27, 20 October 2009; and Welsh and Silva Canha v. Portugal ,no. 16812/11, §§ 29 and 30, 17 September 2013) even though the use of this

form of expression does not rule out any possibility of restriction under

paragraph 2 of Article 10 of the Convention (see Leroy v. France,

no. 36109/03, §§ 39 and 44, 2 October 2008).

(ii) Application of the above principles to the present case

47. The Court reiterates that, in the context of Article 10 of the

Convention, it must take account of the circumstances and overall

background against which the statements in question were made (see, for

example, Morice, cited above, § 162). 48. The Court observes that at the relevant time the struggle between

Yulia Tymoshenko and Victor Yanukovych and their allies was an

important feature of Ukrainian political life. This struggle was particularly

acute in the context of the President’s decision regarding whether to

dissolve Parliament and preparations for the fresh parliamentary elections

that would follow. The applicant company and its editorial policy, by its

own admission, was aligned with Ms Tymoshenko. Ms German was, by

contrast, one of the main spokespeople for Mr Yanukovych and his Party of

Regions. In this capacity she frequently made comments on current affairs

in a variety of media, including live radio and television shows. The

impugned article constituted the sarcastic reaction of its author, aself-proclaimed partisan of Ms Tymoshenko, to Ms German’s participation

in a BBC radio programme, during which she had commented on the

popularity of her party.

49. In these circumstances the Court considers that the subject matter of

the impugned article, namely the author ’s speculation as to Ms German’smotives for making her statements and supporting the Party of Regions, was

of significant public interest.

50. Accordingly, the authorities had a particularly narrow margin of

appreciation in assessing the need for the interference (see, for example,




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




that in some cases it has characterised statements concerning motives and

biases as value judgments (see, for example, Paturel , cited above, §§ 10

and 37, and Lyashko v. Ukraine, no. 21040/02, § 50, 10 August 2006).Moreover, assertions about matters of public interest may, on that basis,

constitute value judgments rather than statements of fact (see, for example,

Paturel , cited above, § 37, and Scharsach and News Verlagsgesellschaft ,

cited above, § 38).

56. In the Court’s view, the impugned statements in the present case also

constituted comments on the question of motivation, were made in the

context of a highly charged political debate, and concerned matters of public

interest. The Court also considers relevant other factors not considered by

the domestic courts such as the hypothetical grammatical forms and the

satirical tone employed by the author, who also stressed explicitly that his

statements were to be seen as ironic. In view of the said nature of theimpugned statements, the Court considers that they are to be viewed, in the

context of the impugned article as a whole, as value judgments rather than

pure statements of fact (compare Brasilier , cited above, § 37, and Morice,

cited above, § 156).

57. The Court reiterates, however, that even a value judgment without

any factual basis to support it may be excessive and that the relevant test is

whether a sufficiently accurate and reliable factual basis proportionate to the

nature and degree of the allegation can be established (see, for example,

Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).

58. In this respect the Court observes that the impugned statements were

not particularly serious in tone. They were also not particularly damaging in

substance, given that the author did not accuse Ms German of specific

illegal or immoral conduct, even though he ascribed less than admirable

motives to her. Read in the context of a highly charged political debate and

in the context of the article as a whole, the expressions found untrue by the

domestic courts were supposed to illustrate the author ’s opinion that

Ms German was insincere and guided by considerations of material gain in

expressing her political opinions, and in particular changing her perceived

political sympathies from those for “Ukrainian nationalism” to those for

Mr Yanukovych and his party, which was perceived by the author to be an

anti-Ukrainian organisation or, in the author ’s words, a “group of Ukrainehaters”.

59. It would appear that the author ’s intention was not to affirm that

Ms German really claimed housing support but rather that membership of

Parliament had motivated her since it brought with it, broadly speaking,

financial rewards.

60. This implies, in turn, that, in the context of the article and in view of

its satirical tone, “a flat in Kyiv” was meant to epitomise all the various

financial benefits associated with being a member of parliament (see

paragraph 24 above).




61. Therefore, the provisions of domestic law entitling members of

parliament to housing support and various other benefits provided some

factual basis for the statements in question, exaggerated and provocativethough they were. In the Court’s view, this factual support was sufficient in

view of the context, the tone and therefore of the nature and degree of the

seriousness of the impugned statements.

62. It is therefore true that the author imputed unworthy motives to the

subject of the article in highly sarcastic language (compare Amihalachioaie

v. Moldova, no. 60115/00, § 52, ECHR 2004-III). However, it must be

remembered that Article 10 also protects information and ideas that offend,

shock or disturb. In addition, it is an important principle established in the

Court’s case-law that journalistic freedom covers possible recourse to a

degree of exaggeration, or even provocation (see Prager and Oberschlick ,

cited above, § 38).63. The domestic courts failed to explain why, despite the impugned

article’s contribution to a debate of public interest and its subject’s role as a

prominent politician and the essential role played by the press in a

democratic society, they considered that the author ’s statements, satirical in

tone as they were, went beyond the permissible level of exaggeration or

provocation.

64. The Court concludes that the domestic courts failed to (i) recognise

sufficiently that the present case involves a conflict between freedom of

expression and the protection of a person’s reputation and (ii) conduct a

sufficiently careful balancing exercise between them on the basis of the

criteria laid down in the Court’s case-law (compare Reznik v. Russia,

no. 4977/05, § 43, 4 April 2013, and Niskasaari and Otavamedia Oy

v. Finland , no. 32297/10, § 58, 23 June 2015).

65. While the sanction imposed on the applicant company was relatively

modest, it nevertheless had symbolic value and it cannot be ruled out that it

could still have a chilling effect on the applicant company and other

participants in the public debate (compare Reznik , § 50, and

Amihalachioaie, § 38, both cited above). In any event, the sanction was not

justified in the light of the considerations set out above.

66. Therefore, while the Court is satisfied that the Ukrainian courts have

taken up important elements of its case-law on Articles 8 and 10 of theConvention, namely the distinction between value judgments and statements

of fact, and have focused only on the most controversial parts of the

impugned publication, it is still not convinced that the balancing exercise

has been undertaken by the national authorities in conformity with all the

criteria laid down in its case-law (see, a contrario, Lillo-Stenberg and

Sæther v. Norway, no. 13258/09, § 44, 16 January 2014, and Von Hannover

v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012).

In light of the limited scope of the domestic courts’ reasoning and the

State’s narrow margin of appreciation in this field it therefore holds that the




interference was not based on “sufficient” reasons and concludes that the

necessity of the interference with the exercise of the applicant company’s

freedom of expression has not been shown.67. There has, accordingly, been a violation of Article 10 of the

Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

68. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

A. Damage

69. The applicant company claimed EUR 1,000,000 in respect of

pecuniary and non-pecuniary damage in its own name. It based the claim in

part on the decline in the circulation of the Evening News newspaper

between 2008 and 2011. In addition, the applicant company also submitted

a claim for EUR 2,000,000 for pecuniary and non-pecuniary damage on

behalf of the author of the impugned article, Mr Tkalenko.

70. The Government contested these claims.

71. The Court rejects the claim submitted in respect of Mr Tkalenko ashe is not an applicant in the present case. It also observes that the applicant

company, in its claim, did not make any distinction between pecuniary and

non-pecuniary damage. To the extent that the applicant company’s claim

concerned pecuniary damage, the Court does not discern any causal link

between the violation found and the pecuniary damage alleged. On the other

hand, ruling on an equitable basis, the Court awards the applicant company

EUR 4,500 in respect of non-pecuniary damage.

B. Costs and expenses

72. The applicant company made no claim in respect of costs andexpenses. Therefore, the Court makes no award under this head.

C. Default interest

73. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.




FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant company, within

three months from the date on which the judgment becomes final in

accordance with Article 44 § 2 of the Convention, EUR 4,500 (four

thousand five hundred euros), plus any tax that may be chargeable, in

respect of non-pecuniary damage, to be converted into the currency of

the respondent State at the rate applicable at the date of settlement:

(b) that from the expiry of the above-mentioned three months untilsettlement 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;

4. Dismisses the remainder of the applicant company’s claim for just

satisfaction.

Done in English, and notified in writing on 2 June 2016, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger

Registrar President

case of instytut ekonomichnykh reform, tov v. ukraine

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