YARUSHKEVYCH v. UKRAINE
Inadmissible
Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev
1. The applicant, Mr Vasyl Vasylyovych Yarushkevych, is a Ukrainian national, who was born in 1959 and lives in Yuzhynets, the Chernivtsi region. He was represented before the Court by Ms N.P. Svyrgun, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their then Agent, Ms Valeria Lutkovska. 3. Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 7 September 2000 the Chernivtsi Regional Court found the applicant, a State bailiff at the material time, guilty of fraud in conjunction with abuse of position, as well acceptance of a bribe, also with abuse of position. It sentenced him to a three-and-a-half-year prison term and decided on an injunction against occupying official posts for the same period and confiscation of his personal property. 6. The applicant challenged the judgment on appeal. 7. In its 22-28 September 2000 issue, the Molodyy Bukovynets, a triweekly regional newspaper with circulation of about 35,000 copies (according to the information provided by the applicant), published an article on the court proceedings in question. The article, entitled “A bailiff has been convicted” («Засудили судовиконавця»), commenced by the following introductory paragraph: “On 7 September the criminal panel of the regional court sent Vasyl Yarushkevych, who had served as a bailiff in Kitsman, down for three and a half years behind bars. According to the court’s judgment, he is “deprived of the right to occupy official posts for three and a half years and is to serve a sentence in a high-security colony”. Also all Yarushkevych’s property is to be confiscated.” 8. Following this introductory paragraph, the article went into detail on the applicant’s conduct which had led to his conviction, including the victims’ last names and details of their statements, an interview with the presiding judge, who explained that the applicant’s personal circumstances, including his status as a Chernobyl victim with no prior criminal record, were taken into consideration in choosing a mild sanction, and the journalist’s allegation that if the applicant were unable to pay his civil debt under the judgment, his car or his apartment might have to be sold. The article finished with the following phrase: “Easy gain turned into heavy consequences”. 9. On 24 October 2000 the Supreme Court of Ukraine quashed in part the judgment of the first-instance court in so far as it concerned the bribe-taking charge and remitted this part of the case to the prosecution authorities for additional investigation. The Supreme Court also reduced the applicant’s prison sentence and the injunction on the occupancy of official posts to three years. Subsequently (on 9 March 2004) the Kitsman District Court discontinued the criminal proceedings on the bribe-taking charge against the applicant as time-barred. 10. On 15 October 2003, having returned to his village after serving his sentence, the applicant brought defamation proceedings before the Pershotravnevyy District Court of Chernivtsi (“the Pershotravnevyy Court”) against the Molodyy Bukovynets newspaper and the journalist who had authored the article in question. He alleged that the article contained an untrue statement about his conviction in respect of the acceptance of a bribe. The applicant noted in this connection that the respective part of the judgment had eventually been quashed and that the case had been remitted for additional investigation. The applicant further submitted that the publication had caused him non-pecuniary damage, as it had resulted in his stigmatisation by the villagers as corrupt, that it had brought about complications in his family relationships and had made it more difficult for him to find employment and reintegrate into society. Accordingly, the applicant sought a declaration of the impugned statement as untrue and thus defamatory, publication of its refutation by the defendants, and compensation in respect of non-pecuniary damage. 11. Although the applicant missed the one-year limitation period established for this kind of claims, the court considered that he had had valid reasons for that and accepted his claim for consideration. 12. On 15 December 2004 the Pershotravnevyy Court found against the applicant. It noted that the information contained in the disputed article had been accurate at the time of its publication and could therefore not be considered defamatory or subject to refutation. 13. The applicant appealed. He insisted that neither at the time of the publication nor later had his guilt in respect of acceptance of a bribe been established by a final judicial decision. He further alleged that publishing a full and detailed account of his conviction before it became final was in violation of the constitutional principle of the presumption of innocence. 14. On 6 April 2005 the Chernivtsi Regional Court of Appeal upheld the first-instance court’s judgment and its major point of reasoning that, when the article at issue had been published, the information about the conviction was accurate. The court further stated: “As regards the appellant’s arguments that by their publication the defendants violated the principle of presumption of innocence... they are ill-founded. It has been established that the author of the article did not accuse [the applicant] of crimes before the pronouncement of the judgment in his case, but that he [the journalist] merely reported on the contents of the judgment, which had been publicly pronounced. Current legislation of Ukraine, including the Law of Ukraine “On Printed Media”,... does not prohibit journalists from providing their readers with information concerning convictions by first-instance courts which have not yet become final. Furthermore, it is well-known that first-instance court judgments are subject to appeal... and the author of the publication did not state that the conviction was final. The first-instance court’s judgment is also in compliance with the requirements of Articles 6 and 10 of the [Convention] concerning public hearings of criminal cases and freedom of expression. The case-file materials indicate that the judgment was pronounced in respect of [the applicant] not as a private person, but as an official having a wider range of obligations to the society and the State. Consequently... the journalist had the right to analyse this thoroughly and report the proceedings to the public...” 15. The applicant appealed on points of law, alleging in particular that the publication went beyond mere reporting on the outcome of the proceedings in the first-instance court. He submitted that it was couched in such terms as to leave no room for doubt in the reader’s mind that the court’s findings were correct. It featured details, unnecessary for reporting on a non-final conviction, such as the court’s reasoning with respect to particular witness statements, a reference to the applicant as an apartment owner and other information not warranted by the context. 16. On 11 June 2007 the Ternopil Regional Court of Appeal, acting as the cassation instance, rejected the applicant’s request for leave to appeal in cassation. 17. Relevant domestic law can be found in the judgment in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 22-24 and 26, 29 March 2005).