MELNYCHUK v. UKRAINE
Inadmissible
The applicant, Mr Mykola Mykytovych Melnychuk, is a Ukrainian national who was born in 1929 and lives in Berdychiv, in the Zhytomyr region of Ukraine. The facts of the case, as submitted by the applicant, may be summarised as follows. In 1996 the Berdychevska Zemlya, a local newspaper, published a critical review by Mr P. of a book written by the applicant. On 26 January 2001 the same newspaper published another article by Mr P. about a new book of poetry also written by the applicant. Mr P. wrote that the applicant’s book looked good, but that it had no soul. Mr P. observed that he had previously commented on another book by the same author and explained that, without a basic knowledge of literary writing and respect for the rules of language, one could not be a poet. Mr. P. then gave a number of examples from the applicant’s new book where the author used numerous Russian words in the Ukrainian text. One of the quotations from the applicant’s book was “The town looks like a girl/ But also has something from the goat/ Though Berdychiv [name of the town] is older/ Almost twice [older]”. Mr P. also criticised the author for using portraits of and making references to Taras Shevchenko, a famous Ukrainian poet. Mr P. called the applicant’s poetry the “theatre of the absurd”. He advised the sponsors of the book to put their money to better use by giving it to charity rather than funding the publication of books of dubious quality. Finally, he stated that the existence of such books could be harmful for the public, particularly schoolchildren, who might think that the printed word was a model for language use. On 14 April 2001 the applicant submitted a written reply to the newspaper, requesting that it be published. He pointed out that Mr P. was a member of the Union of Writers, and went on to refer to Mr P. as the “member” (член), a word which is widely used in vulgar language for the penis. He further claimed that Mr P. was jealous of his popularity and gave a confusing account of Mr P.’s political and business activities. The applicant compared himself to the writers who were persecuted during the Soviet era. He accused Mr P. of being an alcoholic who wrote low-quality verse about birds, and who tried to increase his political standing by criticising other writers. The applicant further disputed the criticism of his use of vocabulary. Finally, he called Mr P. “subhuman” (відлюдок). The applicant’s request for the publication of his reply was refused. In May 2002 the applicant instituted proceedings in the Berdychivskiy City Court against the Berdychevska Zemlya newspaper, claiming compensation for pecuniary and non-pecuniary damage caused by the publication of the above-mentioned articles. He maintained that they had undermined his popularity and violated his copyright. He also requested the court to order the newspaper to publish his reply to the impugned articles. Before the court, the newspaper’s representatives maintained that they had refused to publish the applicant’s reply because it contained obscene and abusive remarks about Mr P. The applicant had been informed of this in writing, and had been invited to amend his reply accordingly. The applicant maintained that he had never received this written refusal, which he believed to have been falsified, and claimed to have received only oral refusals over the telephone. On 27 September 2002 the court found against the applicant. The court established that Mr P.’s articles were written in the form of book reviews, in which the author expressed his personal opinion about the quality of the applicant’s literary work. It found that the newspaper had been entitled to agree or refuse to publish the applicant’s protest. The newspaper had refused to publish the applicant’s views because they contained obscene and abusive remarks about the book reviewer’s personality, rather than a reply to the content of the articles in question. This ground for refusal was provided for by section 37 of the Press Act. The court also dismissed as being unsubstantiated the applicant’s complaint about an alleged violation of his copyright. The applicant appealed to the Zhytomyr Court of Appeal, stating, inter alia, that section 37 of the Press Act entitled him to demand the rectification of untruthful or defamatory information about him. On 16 December 2002 the Zhytomyr Court of Appeal upheld the decision of the first-instance court. It also observed that the impugned articles contained opinions, not facts, and that their content could not therefore be examined in terms of veracity. On 30 October 2003 a panel of three judges of the Supreme Court of Ukraine dismissed the applicant’s request for leave to appeal in cassation. The relevant extracts of the resolution read as follows: “The Committee of Ministers ... Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles: 1. In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication. 2. In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute: ... ii. an attack upon his dignity, honour or reputation ...” The relevant extract of the recommendation reads as follows: “... 5. The Assembly consequently recommends that the Committee of Ministers: i. ask governments of member States to see that legislation guarantees effectively the organisation of the public media in such a way as to ensure neutrality of information, plurality of opinions and gender balance, as well as a comparable right of reply to any individual citizen who has been the subject of an allegation; ...” The relevant extract of the appendix to the recommendation reads as follows: “Principle 2 The governments of the member States should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others. To this end, governments of member States should examine ways and means to: ... – enhance the possibilities of combating hate speech through civil law ... by ... providing for the possibility of court orders allowing victims a right of reply or ordering retraction; ...” The relevant extracts of the recommendation read as follows: “1. Scope of the right of reply Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.” “5. Exceptions By way of exception, national law or practice may provide that the request for a reply may be refused by the medium in question in the following cases: ... – if the reply is not limited to a correction of the facts challenged; ...” “8. Settlement of disputes If a medium refuses a request to make a reply public, or if the reply is not made public in a manner satisfactory for the person concerned, the possibility should exist for the latter to bring the dispute before a tribunal or another body with the power to order the publication of the reply.” The relevant extracts from the Printed Media (Press) Act provide: “... It shall be prohibited to use the printed mass media for: – an interference with the private life of citizens, or an attack on their honour and dignity; ...” “Citizens, legal entities and State bodies and their legal representatives shall be entitled to demand the rectification of information published about them or data that do not correspond to the truth or defame their honour and dignity. If the editorial board has no evidence that the information published by it corresponds to the truth, it must rectify this information at the plaintiff’s request in the next issue of the printed media or publish a rectification on its own initiative. ... The editorial board shall refuse to publish the reply if it: 1. violates the provisions of section 3 of this Act; ... The editorial board shall within a month of receipt of the reply ... inform the applicant in writing ... of the refusal to publish the reply, indicating the grounds for such a refusal ...”