CASE OF SIRYK v. UKRAINE
Preliminary objection joined to merits and dismissed (victim);Violation of Art. 10
Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
4. The applicant was born in 1959 and lives in Irpin. 5. On 23 March 2005 the applicant sent to the State Tax Administration a letter in which she complained that the management of the Academy of the State Tax Service, which was under the authority of the State Tax Administration and at which her son had studied before being expelled in 2004, were engaging in unlawful and corrupt activities. 6. The relevant parts of the letter read as follows: “I address you concerning the real situation at the Academy ... [This letter] will concern the flagrantly unfair attitude towards students of the Law Faculty, headed by [S.], to students' parents, with the complete ... support ... of the President of the Academy [M.]... The reason for [addressing you] is a television report, broadcasted on 22 March 2005, concerning the student protest organised by [M.] against [his] dismissal from the post of President of the Academy. I really hope that my letter can influence the course of events. My son, Mr Yaroslav Siryk, [who] had successfully and independently entered the Law Faculty of [the Academy], was expelled from it ... I could not even imagine that the methods described below were applied in a State educational institution ... ... My son missed the beginning of studies because of a severe infectious disease ... Subsequently, I was called [to the Law Faculty] and during a private conversation [S.] told me that [students] like my son could not study at her faculty under the normal conditions, and that if I did not want to have problems with [graduation] I had to agree to additional financial conditions, in particular, to pay her 200 [United States dollars] for every exam, and 50 [United States dollars] for every test ... After my unconditional refusal, my road of sorrows began ... Two or three times a week I was called to the office of the Dean [of the Law Faculty] for numerous [discussions of problems], one of the first of which concerned the checking of [my son's] medical documents ... the [professors] shouted at me, called me a swindler and so on ... Because he had been on sick leave ... and because of the enduring tense discussions with the Dean and the Deputy Dean ... my son did not have normal conditions in which to study... When I tried to enter the office of the Dean in order to discuss that matter, she ... simply ... pushed me out of the office ... And I wrote a detailed complaint to the President [of the Academy] ... (a copy is enclosed) ... [T]he President ordered that my son be allowed additional time to take the winter exams... [H]owever, afterwards arbitrariness on a larger scale began: professors were simply receiving from [S.] and [the Deputy Dean B.] ... categorical instructions not to allow my son to take exams... Those instructions were rigorously complied with, as the staff of the Academy was hired on the basis of personal loyalty towards the management or dependency on the management [of the Academy]: numerous relatives ... close friends ... former students [of the Academy] ... about whose knowledge, competence and work experience it is not possible to speak. It is difficult for them to find another job, therefore they are ready to fulfil any assignments, obey any wishes of the management ... ... [S.] and [B.] became so impudent that together they conducted negotiations with me concerning extra-contractual payments [for my son's studies] at the office of [S.]. In a normal civilised country [people] would have already compared the earnings of the State servants and their standard of living. What [amount of] salary enables the Dean of the faculty [S.] to wear different exclusive imported clothes and diamonds every day?! ... This was the rudeness, extortion and derision which I endured during the educational year at the State institution, having paid a substantial amount of money [for the education]. The most alarming thing in this story is that our case is not the only one ... At the same time [as this was happening to us] ... more than twenty persons were simply kicked out of the Academy in the same way ... the teachers received from the Dean or the Deputy Dean categorical instructions not to allow a particular student to take an exam ... The whole process of the intentional expulsion of certain [students] and the admission of others on a contractual basis is ... a system of extorting of money from the parents devised by the management of the faculty and the Academy ... All the actions of [S.], approved by [M.], demonstrate [their] legal incompetence and ruthless abuse of power, though the old [State] regime generously appraised her 'achievements'; during its last days [the old regime] awarded [S.] the title of Distinguished Lawyer, and the President of the Academy promoted her to First VicePresident [of the Academy] I hoped the new authorities would sort everything out, but [people like S. and M.] feel perfectly at home under any regime. In addition to the violations described [above], I ask you to look at the following: 1. On what does [the Academy] spend the budgetary funds and the money from [students'] parents? - why does the President of ... [the Academy, in whose possession] there is an expensive 'Mercedes', additionally buy an 'Audi A-8' for [the price of] 800,000 [Ukrainian] hryvnias?! - what is the source of the money and what is the need for the business trips on which [M.] and [S.] constantly go? - what are the earnings [allowing] the State servant [S.] to wear different expensive ... clothes and diamonds every day? - how did [S.] manage to gain her doctor's degree so soon [after] having completed her higher education at the Academy ... - what benefits does [the Academy] receive from the companies of [M's] brother and sister? - on what grounds did the staff of the Academy obtain double salary payments at the end of 2004 ... As regards the activities of those persons during the [Presidential] election [of 2004] ... [M.] and [S.] ... did not let students take part in meetings in support of Yushchenko ... Students were forced ... to vote in the Academy under the supervision of the professors ... According to the parents of students [wishing to enter the Academy], during the [2004] summer admission campaign [M.] ... openly stated that he was collecting money for the [Presidential] election [of 2004] ... The only thing which I wish to try to achieve [is] that my letter helps to restore justice in our small Irpin region ...” 7. In April 2005 Ms S., who was at the time the First Vice-President of the Academy, instituted defamation proceedings against the applicant in the Kyyevo-Svyatoshynskyi District Court of the Kyiv Region. 8. Ms S. alleged that by a letter of 23 March 2005 the applicant had disseminated untrue and defamatory statements about her, and asked the court to order the retraction of the statements. Ms S. also claimed compensation for non-pecuniary damage. 9. The applicant, in her turn, contended that the information contained in the impugned letter was based on facts, some of which could be confirmed by witnesses. She also argued that her statements were, for the most part, value judgments, for which she should not be held responsible pursuant to section 47 of the Information Act. The applicant, relying on the decisions of courts in similar, according to her, defamation cases, also submitted that by her letter of 23 March 2005 she had simply informed the higher authorities about irregularities at the Academy and had not disseminated the statements about Ms S. within the meaning of Article 277 of the Civil Code of 2003. 10. By a letter of 29 April 2005 the applicant requested the President of the Supreme Court to transfer the case to a district court in Kyiv, stating that Ms S's husband worked as a judge in the Irpin Town Court of the Kyiv Region and could influence the outcome of the proceedings before the Kyyevo-Svyatoshynskyi District Court. By a letter of 3 June 2005 the Deputy President of the Supreme Court informed the applicant that her request had been rejected as unfounded. 11. On 25 June 2005 the Kyyevo-Svyatoshynskyi District Court, relying on Articles 277 and 280 of the Civil Code of 2003, ruled in part in favour of Ms S. It found that the applicant had failed to prove her statements that the latter had treated the students and their parents unfairly; that she had demanded from the applicant a payment for every exam and test which the applicant's son had had to sit; that she had been rude or shouted at the applicant; that she had called the applicant a swindler; that she had pushed the applicant out of the office; that she had given instructions to the professors not to allow the applicant's son to take exams; that she had not allowed students to attend the meetings in support of V. A. Yushchenko during the Presidential election; that the actions of Ms S. had demonstrated that she was legally incompetent; and that she had exceeded her powers. 12. The court further held that the above statements had been publicly disseminated, as the letter had been addressed to a legal entity and the applicant could have foreseen that it would be read by more than one person. It also noted that Ms S. had acquainted herself with the text of the letter in the presence of the President of the Academy and representatives of the State Tax Administration. 13. The court declared the above statements to be untrue and defamatory and ordered the applicant to retract them by rescinding the impugned letter. The court also ordered her to pay Ms S. 1,000 Ukrainian hryvnias (UAH) in compensation for non-pecuniary damage. 14. On 14 October 2005 the Kyiv Regional Court of Appeal upheld the judgment of the first-instance court in full. 15. On 25 July 2006 the Supreme Court dismissed the applicant's request for leave to appeal in cassation as unsubstantiated. 16. The relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to rectify incorrect 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.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. 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 the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” “Everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power, bodies of local self-government, and to officials ... of those bodies, who are obliged to consider the petitions and to give a substantiated reply within the term established by law.” 17. The relevant extracts from the Civil Code of 1963 read as follows: “A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful ... A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests, honour, dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non-pecuniary damage as well as a retraction of such information ...” 18. The relevant extracts from the Civil Code of 2003 read as follows: “1. A physical person whose non-pecuniary rights have been infringed as a result of 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 ... ... 3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary. 4. Untrue information shall be retracted by the person who disseminated the information ... 5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled. 6. A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply, and also [the right to] the retraction of the 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 it was disseminated.” “1. If there has been pecuniary and/or non-pecuniary damage caused to a physical person as a result of a violation of his personal non-pecuniary rights, the damage shall be compensated. 19. The relevant extracts from the Information Act provide as follows: “... Liability for the 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, [or] defames the honour and dignity of a person ...” “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, the evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [with] the use of hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truthfulness need not be proved ...” 20. Relevant extracts from the judgment read as follows: “... The Constitutional Court of Ukraine found that: 1. A citizen, [V.A.S.], has lodged with the Constitutional Court of Ukraine a request for an official interpretation of the provision of Article 7 § 1 of the Civil Code [of 1963] containing the phrase “disseminated such information”. ... According to the applicant, the practical need for an official interpretation is justified by the lack of coherence in the application of that provision by the courts of Ukraine ... [The applicant] maintains that the Octyabrskyi Court of Poltava found that his petition to the Poltava Regional Tax Administration against a tax inspector for unlawful actions ... disseminated information which did not correspond to reality, and degraded the honour, dignity and reputation of the tax inspection employee. By its judgment, the court obliged [V.A.S.] to retract the information by sending a petition to the relevant department of the [Tax] administration, and to compensate that official for the damage caused. A judicial panel of the Poltava Regional Court of Appeal and a panel of judges of the Judicial Chamber in Civil Cases of the Supreme Court of Ukraine dismissed the appeal in cassation of [V.A.S.] against the judgment of the district court. ... The Constitutional Court of Ukraine considers that petitions by citizens to a lawenforcement body which contain certain information concerning the failure of officials to comply with the laws, are submitted ... not for the purpose of notifying the community or citizens of such matters, but seeking to have it verified by competent officials. Therefore, such petitions cannot be considered to constitute dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of an official of a law-enforcement body, within the meaning of Article 7 § 1 of the Civil Code ... At the same time, [if] petitions to a law-enforcement body contain knowingly untrue information, this will lead to disciplinary, civil-law, administrative, or criminal liability ... In particular, Articles 173-1 and 212-1 of the Code of Administrative Offences of Ukraine provide for administrative liability for dissemination of untrue rumors which can provoke panic among the population or a violation of public order, and for notification to registration bodies of acts of civic status of knowingly untrue information. The Criminal Code of Ukraine provides for criminal liability for knowingly untrue reports concerning a planned explosion, fire, or other action which may cause deaths or have other grave consequences (Article 259), knowingly untrue reports of crimes to a court, prosecutor, investigator, or body of inquiry (Article 383) etc ... The dissemination of untrue information concerning the private (family) life of an official of a law-enforcement body in his personal or citizen's capacity may constitute a ground for the applicant's civil-law liability under Article 7 of the Civil Code. In the light of the foregoing ... the Constitutional Court of Ukraine decides that: 1. Under Article 7 § 1 of the Civil Code ... 'disseminated such information' shall be understood, within the context of the constitutional appeal, as meaning that statements made in letters, petitions or complaints to a law-enforcement body by a person who is of the view that officials of that body have infringed his rights in the exercise of their functions cannot be considered to be dissemination of information degrading the honour, dignity or reputation of, or causing damage to, the interests of those persons. [The inclusion of] knowingly untrue information in letters, petitions, or complaints to a law-enforcement body shall lead to the liability provided for by the current legislation of Ukraine. 2. The judgment of the Constitutional Court of Ukraine is binding on the territory of Ukraine, is final and may not be appealed against ...” 21. The relevant extracts from the Resolution provide as follows: “... 16. According to Article 40 of the Constitution of Ukraine everyone has the right to file individual or collective petitions or to personally appeal to bodies of State power ... The courts shall take into account that, if a person files a petition with the bodies mentioned [above] which contains certain information, and if that body is competent to verify such information and to give a reply, [the fact that] ... the information has not been confirmed as true ... may not as such constitute a ground for allowing a [defamation] claim, as in such a case the person has exercised his constitutional right under Article 40 of the Constitution, and [has not] disseminated untrue information. If a person files a petition with the law-enforcement bodies, the courts should take into account the conclusions of the judgment of the Constitutional Court of Ukraine of 10 April 2003 ... (the case concerning dissemination of information) ...”