CASE OF MYRSKYY v. UKRAINE
Violation of Art. 10;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
6. The applicant, Mr Rudolf Yakovych Myrskyy, is a Ukrainian national who was born in 1932 and lives in Lviv. He is a Doctor of Philosophy and a political science professor, who also holds leading positions in the Holocaust International Centre, the Association of National Minorities in the Lviv Region, and the International Anti-Fascist Congress. 7. In March 1999 the applicant took part in a round table organised by the association “For Inter-Ethnic Peace and Concord in Ukraine” on the occasion of the International Week against Racism. 8. On 26 March 1999 the newspaper Ukraine and the World Today (Україна і світ сьогодні) published selected excerpts (compiled by its journalist Mr L.) from statements by certain participants, including the applicant, under the headline 'Judaeophobia at the political level?' ('Юдофобія на рівні політики?'). One of the arguments ascribed to the applicant read as follows: “Unfortunately, judaeophobia may be observed not only in social behaviour, but also in politics. For example, the self-styled Party of Ukrainian Unity [«Партія української єдності»], which professes the aim of instilling in people an ideology and a psychology of national extremism, is kicking off its activities in Lviv.” 9. On 28 April 1999 thirteen members of the founding committee of the Party of Ukrainian Unity brought defamation proceedings against the applicant and the newspaper's editorial office before the Zaliznychnyy District Court of Lviv (“the Zaliznychnyy Court”). They alleged, in particular, that the applicant's statement, as cited above, was untruthful, defamatory and injurious to their honour, dignity and reputation, as well as debasing the future party's image. The plaintiffs sought a public disclaimer and apologies by the applicant and the editorial office, as well as compensation for non-pecuniary damage. 10. On 11 August 1999 the court requested the plaintiffs to specify their claim concerning the non-pecuniary damage and to submit additional documents, which they did on 27 October 1999. 11. On 21 June 2001 the court further requested the plaintiffs to submit some other documents concerning the party's registration. 12. On the same date the judge dealing with the case sent the defendants a copy of the above claim for comments. The same letter informed them that the hearing of the case was scheduled for 9 July 2001. 13. According to the judge's explanation given to the applicant in July 2003 on the latter's request, the claim remained unexamined during the period from 28 April 1999 to 2 October 2001 “due to the pre-judicial preparations”. It was also noted in the aforementioned letter that the judge, by virtue of his status, was under no obligation to provide the applicant with further explanations. 14. The applicant objected to the claim, contending that the impugned sentence was the journalist's own interpretation of his words taken out of context. Relying on his right to freedom of expression enshrined in Article 34 of the Constitution, the applicant submitted that during the round table he had expressed his view of a political scientist as regards an emerging political force. He also brought to the attention of the court several publications concerning the foundation of the Party of Ukrainian Unity in Lviv, which had appeared in the local newspapers in 1998-99 and which contained, according to him, an indication of that party's extremist trends. 15. The Zaliznychnyy Court heard one of the round table's organisers, who stated that the journalist had paraphrased and edited the applicant's original statement to make it appear harsher. 16. Mr L., who had prepared the impugned publication, was questioned as a witness and submitted that it was a verbatim record of the applicant's statement made at the round table. He noted however that the audio tape had been destroyed on the expiry of the one-year statute of limitations period established for bringing defamation proceedings. 17. During the hearings some of the plaintiffs used the word “yid” referring to Jews, which the applicant found pejorative and protested against its usage. The court allowed his complaint and directed the plaintiffs to avoid using that term. 18. By a judgment of 7 March 2002 the court allowed the plaintiffs' claim in part. It considered it established, firstly, that the impugned statement had indeed been made by the applicant, and, secondly, that it had been untruthful and defamatory. The court ruled as follows: “To oblige R. Myrskyy and the editorial office of the newspaper Ukraine and the World Today to publish (...) a disclaimer worded as follows: “The statement of Rudolf Myrskyy published in the article 'Judaeophobia at the political level?' of 26 March 1999: “For example, the self-styled Party of Ukrainian Unity, which professes the aim of instilling in people an ideology and a psychology of national extremism, is kicking off its activities in Lviv” is untruthful. The editorial office and the author sincerely regret having published it and offer their apologies to the founders of the Party of Ukrainian Unity”. 19. The court held that publication of the aforementioned disclaimer and apologies would constitute sufficient compensation to the plaintiffs for any non-pecuniary damage sustained. 20. On an unspecified date in July 2002 the court issued additional reasoning to the above judgment, which reflected its findings as follows. 21. Having examined the statute and the programme of the party in question, the court noted the absence of any provisions inciting racial hatred or disparaging attitudes towards national minorities and held that the applicant's statement was inconsistent with the true facts and therefore injurious to the plaintiffs' dignity and reputation. 22. Furthermore, the court made reference to the testimony of Mr L., who claimed to have reproduced the impugned statement literally and without omission. It also referred to some extracts from a book co-authored by the applicant, which contained arguments similar in style and wording to the statement complained of. 23. Regarding the applicant's allegation that his words had been misrepresented and that they were a value judgment, the court “assessed them critically, having regard to the explanations given at the hearing by the witness [Mr L.] and to the assessment of the other evidence adduced”. 24. Finally, with regard to the background publications in other newspapers invoked by the applicant, the court concluded that they could not be considered as providing basis for absolving him from his responsibility in the examined defamation case. 25. The applicant appealed. He also subsequently lodged some comments on the minutes of the hearings before the first-instance court, which were allegedly dismissed in his absence. 26. On 9 September 2002 the Lviv Regional Court of Appeal found against the applicant, upholding the judgment of 7 March 2002 and reproducing almost literally its reasoning. 27. The applicant brought a cassation appeal, in which he argued that his statement had been a value judgment made in the context of a free political debate He submitted that the mentioned value judgment had a factual basis, as the extremist tendencies had indeed been shown by the plaintiffs in some publications (which he had invoked earlier) and by their usage of the pejorative term “yid” during the hearings. Lastly, the applicant brought to the attention of the cassation court the fact that the plaintiffs' claim had been stayed without any procedural steps in the first-instance court for more than two years, which had led to the loss of a crucial piece of evidence (the audio tape of the round table). 28. On 12 October 2002 the disclaimer and apologies were published in the newspaper Ukraine and the World Today in enforcement of the judgment of the Zaliznychnyy Court of 7 March 2002. 29. On 31 March 2003 the Supreme Court dismissed the applicant's cassation appeal as unsubstantiated. 30. The relevant domestic law and practice concerning the freedom of expression and defamation proceedings are summarised in the judgment Ukrainian Media Group v. Ukraine, no. 72713/01, §§ 22-25 and 27-32, 29 March 2005. 31. According to Article 143 of the Code of Civil Procedure of 1963 (repealed with effect from 1 September 2005), pre-judicial preparations by a judge dealing with a newly registered civil claim may include the following, depending on the particularities of each case: requesting additional evidence from the plaintiff, explanation of the procedural rights and duties to the plaintiff and/or the defendant, taking decisions about participation of third persons, representatives of non-governmental organisations or prosecution authorities, as well as summoning witnesses, requesting evidence from state or other institutions, and ordering measures for securing the claim. After the registration of a civil claim, the first-instance court has seven days for the aforementioned preparations, or, in exceptional cases, twenty days (Article 147 of the Code).