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FIFTH
SECTION
CASE OF
MYRSKYY v. UKRAINE
(Application
no. 7877/03)
JUDGMENT
STRASBOURG
20
May 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Myrskyy v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
judges,
Mykhaylo
Buromenskiy, ad
hoc judge,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 27 April 2010,
Delivers
the following judgment:
PROCEDURE
- The
case originated in an application (no. 7877/03) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Rudolf Yakovych
Myrskyy (“the applicant”), on 26 February 2003.
- The
applicant was represented by Mr V. Tsirbas, a lawyer practising in
Strasbourg. The Ukrainian Government (“the Government”)
were represented by their Agent, Mr Yu. Zaytsev.
- The
applicant alleged, in particular, that his right to freedom of
expression had been violated and that the civil proceedings against
him had been unfair and excessively long.
- On
9 September 2003 the Court decided to give notice of the application
to the Government.
- On
1 February 2005 the Court decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- 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.
- 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.
- 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.”
- 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.
- 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.
- On
21 June 2001 the court further requested the plaintiffs to submit
some other documents concerning the party’s registration.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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”.
- The
court held that publication of the aforementioned disclaimer and
apologies would constitute sufficient compensation to the plaintiffs
for any non-pecuniary damage sustained.
- On
an unspecified date in July 2002 the court issued additional
reasoning to the above judgment, which reflected its findings as
follows.
- 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.
- 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.
- 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”.
- 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.
- 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.
- 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.
- 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).
- 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.
- On
31 March 2003 the Supreme Court dismissed the applicant’s
cassation appeal as unsubstantiated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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.
- 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained about a violation of his right to freedom of
expression under Article 10 of the Convention, which reads in its
relevant part as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of the reputation or rights of others ...”
A. Admissibility
- The
Court notes that the present complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The submissions by the parties
- The
Government contended that there had been no interference with the
applicant’s right to freedom of expression in the present case.
They underlined in this connection the wording of the disclaimer and
apologies ordered by the domestic courts, according to which those
had been “the editorial office and the author”, who had
to provide them. Given the fact that, on one hand, the applicant had
never admitted authorship of the impugned statement, and, on the
other hand, that the author of the compilation which had contained
the disclaimed statement, was the newspaper’s journalist Mr L.,
the Government considered that the court order had not affected the
applicant’s rights under Article 10 of the Convention.
- Regardless
of this observation, the Government maintained that even assuming
that there had been an interference with the applicant’s right
to freedom of expression, it was prescribed by law and was necessary
in a democratic society for the protection of the reputation of
others.
- The
applicant contested both aforementioned arguments.
2. The Court’s assessment
- The Court observes the domestic courts found against
the applicant in civil defamation proceedings, which as a rule will
suffice to amount to an “interference” with the exercise
of his right to freedom of expression (see, for example, Kuliś
and Różycki v. Poland, no. 27209/03, § 34,
6 October 2009).
- The
Court does not accept the Government’s submission that the
courts’ findings bore no consequences for the applicant. It
observes that the domestic courts obliged the applicant, along with
the newspaper’s editorial office, to disclaim the impugned
statement and to offer public apologies to the plaintiffs through a
publication in the same newspaper. The text of the disclaimer, as
ordered by the Zaliznychnyy Court and upheld by the higher courts,
clearly and unambiguously stated that “the statement of Rudolf
Myrskyy (the applicant) ... is untruthful” (see paragraph 18
above). While it further referred to “the editorial office and
the author” as regretting that publication and presenting their
apologies to the plaintiffs, it is clear from the overall text that
it referred to the applicant as the author in question, but not the
journalist who had prepared the compilation. It is unlikely that a
reader not familiar with the background of the case or even those
aware of the proceedings (in which the journalist had never been
involved as a defendant) would come to any other interpretation.
- The
Court therefore considers that domestic court’s findings
concerning the applicant and the order to apologise by way of
newspaper disclaimer constituted an interference with the applicant’s
freedom of expression in this case and dismisses the Government’s
argument in that regard.
- As
to the nature of the interference, the Court notes that the
proceedings against the applicant and the newspaper were civil rather
than criminal, with the result that there was no risk of criminal
liability being established. Further, the applicant was not ordered
to pay damages to the plaintiffs, and was not, it appears, required
to pay for the insertion of the apology in the newspaper.
Accordingly, the interference with the applicant’s rights,
although it did take place (see paragraph 39 above), was rather
limited.
- The
Court considers that the interference at issue was prescribed by law
within the meaning of Article 10 § 2 of the Convention
(see Ukrainian Media Group, cited above, § 50)
and intended to pursue a legitimate aim – the protection of the
reputation and rights of others. Hence, the only point at issue is
whether the interference was “necessary in a democratic
society” to achieve that aim.
- According
to the Court’s well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each
individual’s self-fulfilment. Subject to paragraph 2 of Article
10, it is applicable not only to “information” or “ideas”
that are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of that pluralism, tolerance and
broadmindedness without which there is no “democratic society”.
As set forth in Article 10, this freedom is subject to exceptions,
which must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999 VIII).
- On the issue whether the interference was necessary
“in a democratic society”, the Court reiterates that this
depends on whether the interference complained of corresponded to a
pressing social need, whether it was proportionate to the legitimate
aim pursued and whether the reasons given by the national authorities
to justify it are relevant and sufficient (see Bladet Tromsø
and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR
1999 III). The Court’s task is not to take the place of
the national courts but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant
to their power of appreciation (ibid., § 60, and, Fressoz and
Roire v. France [GC], no. 29183/95, § 45, ECHR 1999 I).
In doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they based
themselves on an acceptable assessment of the relevant facts (see
Jersild v. Denmark, 23 September 1994, § 31,
Series A no. 298, and Veraart v. the Netherlands, no.
10807/04, § 61, 30 November 2006). The nature and severity of
the penalty are also factors to be taken into account (see Perna
v. Italy [GC], no. 48898/99, § 39, ECHR 2003 V,
with further references).
- Turning
to the present case, the Court notes that one of the applicant’s
key arguments in the defamation proceedings was his denial of the
authenticity of the impugned statement published following the round
table with his participation. The applicant submitted to the domestic
courts, in particular, that the original statement expressed by him
had been couched in milder terms and had a broader context. The
courts found against him on that point after considering the evidence
which was before them: the submissions of the applicant and one of
the organisers of the round table on the one hand, and those of Mr L,
who had prepared the article in Ukraine and the World Today,
on the other. In the ordinary course of events, in the absence of
prima facie evidence of procedural unfairness the Court would
accept such findings of the domestic courts (see, for example,
Marchenko v. Ukraine, no. 4063/04, § 48, 19 February
2009). In the present case, however, the first-instance court carried
out pre-judicial investigations during the whole of the period from
the bringing of the proceedings in April 1999 until 21 June
2001, when the defendants were informed of the proceedings. By then,
however, apart from the fact that pre-judicial enquiries should have
been terminated within a maximum of twenty days from registration of
the civil claim (see paragraph 31 above), the newspaper had destroyed
the tape recording of the proceedings as it took the view that the
prescription period of one year had expired. The unfortunate result
was that by not dealing with the case, or even informing the
defendant of its existence, until the evidence which could well have
shed a conclusive light on the issue had been destroyed, the
first-instance court had put itself in a position in which its
assessment of the relevant facts was restricted.
- Regardless
of the question of authenticity of the statement at issue, the Court
notes that the statement attributed to the applicant dealt with a
number of issues, and the domestic courts’ findings that it was
defamatory also comprised several parts. Thus the statement in
Ukraine and the World Today contended that the Party of
Ukrainian Unity was beginning its activities in Lviv, and also
contended that the Party professed the aim of instilling in people an
ideology and a psychology of national extremism.
- The
first-instance court, whose reasoning was confirmed by the superior
courts, did not make any findings as to whether the Party was
beginning its activity in Lviv. It did, however, find that the
Party did not profess “the aim of instilling in people an
ideology ... of national extremism”, and went on to conclude
that the statement was not only untrue, but also that it was
defamatory.
- As to the finding that the Party had as an aim the
instillation of extreme nationalist ideology, the Court notes that
the applicant was able to bring all the evidence he wished in order
to support his claims in this regard (see and contrast with Jerusalem
v. Austria, no. 26958/95, § 45, ECHR 2001 II), but
the courts nevertheless decided that the aims of the Party were to be
established on the basis of its programme, and therefore found
against the applicant on the point.
- As
to the conclusion which the courts drew from the factual findings
that the applicant had indeed made the statement as printed and that
it was erroneous, namely the conclusion that the statement was
defamatory, the domestic courts gave no reasoning, but merely
concluded from the finding that the facts were untrue, that they were
also defamatory.
- It
is in this connection that the Court recalls that while the existence
of facts can be demonstrated, the truth of value judgments is not
susceptible of proof. The requirement to prove the truth of a value
judgment is impossible to fulfil and infringes freedom of opinion
itself, which is a fundamental part of the right secured by
Article 10 (see, for example, Lingens v. Austria, 8 July
1986, § 46, Series A no. 103, and Oberschlick v. Austria
(no. 1), cited above, § 63).
- In
the present case, even accepting the domestic courts’ findings
of fact, it appears that no consideration whatever was given to the
question of whether the applicant’s statement amounted to
defamation or whether, given the political context in which it was
initially delivered and subsequently reported, it fell to be regarded
as part of a broader debate, or whether it was of such a nature as to
be defamatory of the plaintiffs notwithstanding that context. In
spite of the applicant’s arguments, the courts failed to
recognise that the case before them involved a conflict between the
right to freedom of expression and the protection of the reputation
and the rights of others, let alone undertaking a balancing exercise
between the interests involved (compare and contrast Tomasz Wołek,
Rafał Kasprów and Jacek Łęski v. Poland
(dec.), no. 20953/06, 21 October 2008).
- It
follows that the domestic courts failed to give relevant and
sufficient reasons for their finding that the statements ascribed to
the applicant were defamatory of the plaintiffs.
- Whilst
bearing in mind that the penalty imposed on the applicant was slight
(see paragraph 40 above), the Court considers that it cannot
compensate for that failure.
- It
follows that there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATIONS
OF ARTICLE 6 § 1 OF THE CONVENTION
- The
applicant complained that the defamation proceedings against him had
been unfair, since the domestic courts had allegedly failed to
address his contentions founded on his right to freedom of
expression. In addition to complaining about some minor procedural
breaches (dismissal of his remarks to the hearings’ minutes in
his absence and delayed reasoning by the first-instance court), the
applicant also submitted that the length of the proceedings had been
unreasonable given a considerable period of inactivity on the part of
the first-instance court, which had led to the loss of an important
piece of evidence. The applicant relied on Article 6 § 1 of the
Convention, which provides, in its relevant part, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The Court notes that these complaints are closely
linked to the Article 10 complaint and must therefore likewise be
declared admissible.
B. Merits
- Having regard to the findings relating to Article 10
of the Convention (see paragraphs 44 and 50-53 above), the Court
considers that it is not necessary to examine these issues separately
(see, mutatis mutandis, Flux v. Moldova (no. 1),
no. 28702/03, § 36, 20 November 2007).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 Ukrainian hryvnias (UAH) in respect of
non-pecuniary damage.
- The
Government contested this claim. They considered that a finding of a
violation would constitute sufficient just satisfaction.
- The
Court accepts that the applicant has suffered non-pecuniary damage,
such as distress and frustration resulting from the violation of his
right under Article 10 of the Convention, which cannot be
sufficiently compensated by the mere finding of a violation of the
Convention. Making its assessment on an equitable basis, the Court
awards the applicant 1,200 euros (EUR) under this head.
B. Costs and expenses
- The
applicant also claimed UAH 2,600 for costs and expenses incurred
before the domestic courts and UAH 20,000 for those incurred before
the Court.
- The
Government submitted that the amounts claimed were baseless and
excessive.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that
the applicant failed to submit any documents in support of his
claims. The Court therefore makes no award under this heading.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine
separately the complaints under Article 6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one
thousand two hundred euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
