CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOV v. UKRAINE
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
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 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 in Lviv. 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, initially refusing 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. 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 am embarrassed 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 of Regions. I used to think that one could easily debate with Ganna German. I put myself in 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 be ashamed 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 of an 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 the feelings 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 such demagogues 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 ...” 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 above statements 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 the operative 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, “a former 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 argued that 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 1997I), 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.