SIREDZHUK v. UKRAINE - 16901/03 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 99 (21 January 2016)

In the case of Siredzhuk v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Erik Møse,
          Faris Vehabović,
          Yonko Grozev,
          Síofra O’Leary,
          Mārtiņš Mits, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16901/03) 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 Petro Stepanovych Siredzhuk (“the applicant”), on 13 May 2003.

2. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, Mr N. Kulchytskyy.

3. The applicant alleged, in particular, that the domestic courts had unlawfully and unfairly ruled against him in defamation proceedings brought by the village mayor, having failed to give sufficient reasons for their findings. He also complained that these proceedings, and proceedings in which his counterclaim against the mayor was examined, had been inordinately lengthy.

4. On 16 November 2010 the above complaints were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1949 and lives in Lviv.

6. In the 1990s a group of scholars, including the applicant, who was a history professor at the Lviv Institute of Internal Affairs at the relevant time, conducted research and a series of field studies, resulting in a manuscript on the history and archaeology of the Kosiv area between the ninth and eighteenth centuries.

7. In July 1997 L., a private publishing house based in Ivano-Frankivsk (“the publishing house”), published five hundred copies of the book following a private donation from a local business, apparently solicited with the assistance of the Kosivskyy District Administration (“the District Administration”). The book was published under the title The Kosiv Area Antiquities (“Cтарожитності Косівщини”). The cover pages of the book stated that it was an “academic edition” containing “essays about history” published under the aegis of the Lviv Institute of Internal Affairs and intended “for scholars, students, teachers, ethnographers, and all those interested in the history of the Kosiv area”.

8. Pages 12-13 of the book featuring the applicant’s essay entitled “From the Past of the Kosiv Area” described the economic hardships faced by the local inhabitants in the seventeenth and eighteenth centuries. In between two paragraphs concerning the above period of time, the applicant included the following text:

“Today, as in the old days, complaints are the only means of protest available to villagers and townsfolk against the arbitrariness of the local administration ...

M.L. [full name given], the mayor of the village of Kosmach, behaves like an omnipotent feudal prince. Before the last elections he disbanded the village election committee, selected people loyal to him as new members and submitted the list for approval to the district authorities five days after the legal deadline had passed. This election committee took an extra day for ‘the counting’ of the votes cast for M.L. and his chosen deputies. Subsequently he acted outrageously towards L.V. [full name given], a category one disabled citizen. Following a decision by the village council, his plot of land was taken away from him and ownership transferred to the carpenter who had constructed M.L.’s summer kitchen. The Kosivskyy District Council (headed by M.Kh. [full name given]) knows about these shocking examples of corruption; however, it has never found the time to redress them. Meanwhile, it wasted no time in agreeing on the restitution to M.L. of a house which had been confiscated from his father-in-law (who had once committed aggravated embezzlement of State property) and of which ownership had since been transferred to the Yablunivka village hospital. It is such a shame that some of the officials in the Kosivskyy District are not true servants of the people, but leeches and traitors of their countrymen, consciously undermining the authority of the young State in the eyes of the population. As in the olden days with respect to the feudal lords, today there is no redress against them; that is why they act so daringly and with impunity. It is because of such fortuitous and corrupt ‘rulers’ that the independent Ukraine cannot rise on its feet.”

9. On 12 December 1997 M.L. drafted a statement of claim against the applicant and the publishing house, seeking the retraction of the above passage, republication of the applicant’s essay with the relevant passage removed, and compensation in respect of non-pecuniary damage. M.L. alleged that the applicant had received fifty copies of the book personally. The other four hundred and fifty copies had, at the material time, been in the hands of the District Administration, who as patron and sponsor of the field studies and the publication, had intended to distribute the books to libraries and local schools. M.L. also maintained that the applicant’s statements about him had been unsubstantiated, insulting and defamatory. In addition, the statements in question appeared in the context of a passage about the seventeenth and eighteenth centuries, which made them grossly irrelevant to the purpose of the publication.

10. On 30 April 1998 M.L.’s claim form was stamped as “received” by the Kosivskyy District Court.

11. On 29 May 1998 that court transferred the case for consideration to the Ivano-Frankivsk City Court (“the City Court”) in the same town as the publishing house. On various dates the applicant unsuccessfully challenged the territorial jurisdiction of the court, seeking a transfer of the case to his local court in Lviv.

12. On 3 March 1999 the City Court commenced its examination of the case.

13. Between March 1999 and January 2000 the City Court scheduled and adjourned four hearings. Two of them were adjourned owing to financial constraints precluding the court from sending out correspondence in good time, the third on account of the judge having a scheduling conflict and the fourth as a representative of the publishing house was absent.

14. On 18 February 2000 the court held a hearing and admitted the District Administration as a third party in the proceedings. At the applicant’s request the court adjourned the hearing to order archive material which, according to him, would prove the veracity of some of his statements.

15. Between February and October 2000 the court scheduled four more hearings, which were adjourned as one or two parties failed to appear.

16. On 5 October 2000 the City Court held a hearing where the applicant, M.L. and a representative of the publishing house confirmed that the applicant had received fifty copies of the book and the remaining four hundred and fifty copies had been placed at the disposal of the District Administration.

17. On the same date the City Court delivered its judgment. It found that the disputed statements were false and defamatory and ordered the District Administration to return the four hundred and fifty copies of the book in its possession to the publishing house. It further obliged the latter to reprint the book at the applicant’s expense after having removed the disputed passage from it. Lastly, the court awarded M.L. 5,000 Ukrainian hryvnias (UAH)[1] in respect of non-pecuniary damage, to be paid by the applicant.

18. On 13 October 2000 the applicant lodged a “cassation appeal” against this judgment. He noted, in particular, that there was no evidence whatsoever that the disputed statements had been “disseminated”, and that any person other than M.L. himself had read them. He also submitted that he had personally received one hundred copies of the book, which he had destroyed after the action had been lodged against him. The remaining copies having been at the disposal of the District Administration, the book could not have been deemed “disseminated”.

19. M.L. filed an objection in which he submitted, in particular, that a number of officials of the District Administration had read the disputed statements, that some copies of the book had already been distributed to the school libraries, and that the applicant himself had earlier claimed that he had distributed fifty copies of the book. He also submitted letters from the Head and Deputy Head of the District Administration in which they expressed indignation with the fact that the applicant had published a gratuitous attack on M.L.’s reputation and suggested that he may have done so in revenge for M.L.’s refusal to allot a plot of land to the applicant’s mother.

20. On 31 October 2000 the Ivano-Frankivsk Regional Court (“the Regional Court”) dismissed the applicant’s cassation appeal and the judgment of 5 October 2000 became final.

21. The District Administration did not return its copies of the book to the publishing house. According to the applicant, it instead distributed a number of books to various recipients, having cut out the pages which contained the disputed text.

22. On 11 May 2001 the Presidium of the Regional Court quashed the judgments of 5 and 31 October 2000 following a request by the applicant for a supervisory review (протест) and remitted the case to the City Court for fresh examination.

23. In summer 2001 the applicant lodged a counterclaim against M.L. within the framework of the initial defamation proceedings. He referred to a number of purported shortcomings in M.L.’s official conduct as mayor, and submitted that by complaining to the authorities about the publication, the mayor had simply sought to compromise the applicant’s reputation among his colleagues and the general public. The applicant further complained that M.L. had published a disparaging article about him in a local newspaper, and sought compensation for non-pecuniary damage and the retraction of several purportedly defamatory statements made in the article at issue. This counter-claim was joined by the City Court for examination together with the defamation claim brought against the applicant.

24. On 5 September 2001 the City Court transferred the case to the Kosivskyy District Court for examination. The applicant appealed against that decision, seeking a transfer of the case to his local court.

25. On 30 October 2001 the Ivano-Frankivsk Regional Court of Appeal (the former Ivano-Frankivsk Regional Court) ordered the case to be remitted to the City Court, having noted that that court had already started examining the case, and that there were no grounds for the case to be transferred to another court. On several further occasions the City Court rejected requests by the applicant for the case to be transferred to his local court and for the presiding judge of the City Court to be removed from the case.

26. Between October 2001 and October 2002 some five hearings were adjourned on account of the applicant’s failure to appear.

27. On 11 October 2002 the City Court heard the case and delivered its judgment, allowing M.L.’s claim in part and dismissing the applicant’s counterclaim. The legal part of the judgment concerning M.L.’s claim stated as follows:

“Having heard the parties [and] having examined the materials in the case file, the court considers that the claim should be allowed in part on the following grounds.

Statements that the mayor [M.L.], ‘an omnipotent feudal prince’, had brutally breached the election legislation ... are rebutted by the decisions of the Kosivskyy District Court of 13 June 1994 and the civil division of the Ivano-Frankivsk Regional Court of 19 July 1994 ... from which it follows that the claimant had not breached the election law, as the claim made by the group of deputies ... seeking an annulment of the lists of the district election committees was dismissed. Statements that [M.L.] had acted outrageously towards [L.V.] ... are rebutted by the decision of the Kosmach Village Council of 14 March 1994 to grant ownership of a plot of land to [L.V.]; and also the statements concerning the settlement of the matter ... concerning restitution of the ... house ... are rebutted by the decision of the Kosivskyy District Court of 12 October 1994 in respect of the claim by [O.L. (M.L.’s spouse)] against Y.S. ... concerning the annulment of the privatisation certificate issued in Y.S.’s name ... .

The court considers that ... the applicant arbitrarily used the aegis of the Lviv Institute of Internal Affairs ... in publishing the work... [and] inserted on pages 12-13 statements unsubstantiated by evidence.

Regard being had to the liability of the [applicant], the gravity of the harm inflicted on the plaintiff as a public official ..., the fact that the publication of the false statements negatively affected his image in the eyes of the ... district administration ..., his acquaintances and his fellow villagers; ... the fact that 450 copies of the publication had been widely read ([by] libraries, schools and the district administration) and the fact that fifty copies had been taken by [the applicant], some of them already having been disseminated, and regard also being had to the time invested by the plaintiff in the judicial examination of his case, the direct liability of [the applicant] in inflicting harm, the court considers that some compensation in respect of non-pecuniary damage should be awarded”.

28. The City Court next awarded M.L. UAH 5,000 in respect of non-pecuniary damage, to be paid by the applicant, and ordered that the disputed statements be retracted. The relevant passage of the operative part of the judgment read as follows:

“the publishing house L. shall publish erratum sheets (додатки) to the book The Kosiv Area Antiquities, retracting the statements (mentioned above) that do not reflect reality, to be paid for by [the applicant].”

29. The applicant appealed. He challenged, in particular, the court’s findings that the impugned information in the book had been disseminated widely, claiming that the court had not established who had disseminated his book and exactly who had read it.

30. On 12 February 2003 the Regional Court upheld the findings of the City Court with respect to M.L.’s claim, endorsing its reasoning as relevant and sufficient. At the same time, the court found that no sufficient reasons had been stated for rejecting the applicant’s counterclaim and remitted it to the City Court for fresh examination.

31. The applicant lodged a cassation appeal, in which he referred to Article 10 of the Convention and the provisions of national law guaranteeing freedom of speech, alleging that the judgments against him were indicative of political repression and seeking to have the findings of the lower courts with respect to M.L.’s claim overturned. The applicant maintained, in particular, that the final three sentences challenged by the mayor had been his value judgments concerning unnamed public officials and could not have been deemed defamatory to the mayor. He further maintained that he could not afford to pay the damages. Moreover, whether M.L. had actually suffered any damage had never been established. In particular, the District Administration had received four hundred and fifty out of five hundred copies of the book, which had been in its possession since the day the action had been lodged. The District Administration had later distributed some of those books to the public, in breach of the court order of 5 October 2000 requiring it to return them to the publishing house for reprinting. Nevertheless, the disputed statements had not reached the public, as employees of the District Administration had cut out the controversial pages, in breach of the authors’ copyright. What had become of the other fifty copies of the book had never been established. Even if members of the public had obtained access to the disputed statements, this could not have affected the mayor’s reputation in any significant way, since the applicant had only recapitulated and reported information that had already been common public knowledge. In support of this allegation, the applicant submitted copies of numerous newspaper articles criticising the mayor and statements by individuals claiming that they had been offended by him in various ways. The applicant maintained that these documents served as sufficient evidence that his statements had been true, and that he could not understand how to draft a retraction of the true statements.

32. The District Administration filed objections to the applicant’s cassation appeal. It contended, in particular, that they had not cut out any pages from the disputed book before distributing it.

33. M.L. also filed objections to the applicant’s cassation appeal. He noted, in particular, that the applicant’s allegations that the non-pecuniary damage award was disproportionate with respect to his income were speculative, since he had never disclosed his income.

34. On 18 March 2003 the City Court stayed the examination of the applicant’s counterclaim against M.L. pending consideration of the cassation appeal.

35. On 1 June 2004 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.

36. The Bailiff Service instituted enforcement proceedings against the applicant, in the course of which he was bound to pay the judgment debt in instalments of 20% of his main income (retirement pension). It appears that the debt was paid in full by June 2007.

37. Between July 2004 and April 2005 the City Court adjourned some seven hearings in the case concerning the applicant’s counterclaim against M.L., either on account of the parties’ absence or the unavailability of recording equipment.

38. On 18 April 2005 the Ivano-Frankivsk Regional Department of Education and Science informed the applicant that it had received fifty copies of the book from the District Administration in 1998, thirty-five of which had been distributed to local schools, others remaining in the Department’s library. None of the copies received had pages missing. The Department also noted that M.L., acting as a private person, had distributed erratum sheets to the book recepients, notifying them that the statements criticising him had been deemed false and defamatory by the courts.

39. On 16 November 2005 the City Court rejected the applicant’s defamation claim against M.L. as unsubstantiated and vexatious.

40. On 13 January 2006 the Regional Court upheld that judgment, and on 21 January 2008 the Rivne Regional Court of Appeal, acting as a court of cassation, rejected a request by the applicant for leave to appeal in cassation.

41. On 23 April 2007 the City Court rejected a claim made by the applicant against the bailiffs who had enforced the judgment of 11 October 2002. It appears from the case file that he did not pursue that claim any further.

42. On 25 April 2007 the City Court rejected a claim made by the applicant against the publishing house for its alleged failure to comply with the judgment of 11 October 2002. It appears from the case file that the applicant did not pursue that claim any further either.

43. In May 2015 the applicant instituted proceedings against M.L. in the City Court. He claimed, in particular, that he had unlawfully published a “pseudo-retraction” of the applicant’s statements found defamatory, which resulted in the breach of the applicant’s copyright and denigration of his dignity. It appears that the proceedings are currently pending.

II. RELEVANT DOMESTIC LAW

A. Constitution of Ukraine

44. Relevant extracts from the Constitution of Ukraine read as follows:

Article 32

“... Everyone is guaranteed judicial protection of the right to have misinformation about himself, herself or members of his or her family corrected, and of the right to demand that any such material be corrected, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such misinformation.”

Article 34

“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 integrity or public order, for the prevention of disorder or crime, for the protection of the health of the population or the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of judiciary.”

B. Civil Code 1963 (repealed with effect from 1 January 2004)

45. Relevant extracts from the Civil Code read as follows:

Article 7: Protection of honour, dignity and reputation

“A citizen or an organisation shall be entitled to demand in a court of law the retraction of statements which do not reflect reality or are set out untruthfully, [and] which degrade their honour and dignity or professional reputation, or cause damage to their interests, unless the person who disseminated the statements proves that they reflect reality.

...

A citizen or an organisation who is the subject of disseminated statements that do not reflect reality and cause damage to their interests, honour, dignity or professional reputation shall be entitled to demand, in addition to the retraction of such statements, compensation for the pecuniary and moral (non-pecuniary) damage caused by their dissemination ...”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

46. The applicant complained that the proceedings involving M.L.’s defamation claim and his counterclaim had been inordinately lengthy and that his right to a fair hearing had been breached, as the courts had failed to respond to his arguments and state adequate reasons for their findings in the judgments given in M.L.’s defamation claim. He referred to Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

47. The Government did not submit any objections concerning the admissibility of the above complaints.

48. In addition to the above complaints, the applicant lodged numerous other complaints under Article 6 of the Convention, alleging that his right to a fair trial had not been respected.

A. Admissibility

49. The Court finds that the applicant’s complaints concerning the length of the proceedings and alleged failure of the domestic courts to state adequate reasons for their decisions taken in the defamation proceedings are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

50. As regards the remainder of the complaints mentioned in paragraph 48 above, having considered them in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Merits

1. Alleged violation of Article 6 § 1 of the Convention on account of the length of the proceedings

(a) The period to be taken into account

51. The applicant viewed the proceedings at issue in the present case as one set, which had started when M.L. had lodged a defamation claim against him and had ended when the final judgment had been taken in respect of his counter-claim.

52. The Government viewed the proceedings at issue as two sets, whose length had to be assessed separately.

53. In the Court’s view, regard being had, in particular, to the manner, in which the domestic courts treated the proceedings at issue (see paragraphs 23 and 34 above), it is feasible to assess the overall length of the proceedings concerning the determination of M.L.’s defamation claim and the applicant’s counterclaim against him in their entirety.

54. Accordingly, the Court notes that the proceedings lasted from 30 April 1998 (when M.L.’s claim was lodged with the Kosivskyy District Court) until 21 January 2008 (when the final decision was taken in respect of the applicant’s counter claim). It follows that the proceedings lasted nine years and nearly nine months.

(b) Reasonableness of the length of the proceedings

55. The applicant submitted that the proceedings in his case had been delayed on account of the improper approach of the judicial authorities in performing their professional duties.

56. The Government contested this view.

57. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

58. The Court notes that, as can be seen from the material before it, some delays in the proceedings in the present case were caused by the applicant’s conduct, in particular, his repeated failures to appear for the hearings. At the same time, a number of other delays were caused by other factors, including adjournments of hearings on account of other parties’ absences and various scheduling issues, remittals of the case for reconsideration and extended periods of judicial inactivity. In addition, the proceedings were also delayed on account of the non-enforcement and eventual quashing of the final judgment of 5 October 2000. The Court has frequently found violations in cases raising issues similar to those in the present case (see, for example, Pavlyulynets v. Ukraine, no. 70767/01, §§ 49-52, 6 September 2005; Golovko v. Ukraine, no. 39161/02, §§ 62-63, 1 February 2007; and Chukhas v. Ukraine, no. 4078/03, §§ 28-29, 12 July 2007).

59. Having examined all the material submitted to it, the Court considers that the Government have not put forward any facts or arguments capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, it considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

60. There has, accordingly, been a breach of Article 6 § 1 in this respect.

2. Alleged violation of Article 6 § 1 of the Convention on account of the purported inadequacy of the reasoning in the courts’ decisions

61. The applicant submitted that the domestic courts had failed to provide sufficient reasoning for their factual findings and had reached arbitrary conclusions in the defamation proceedings against him. First of all, they had failed to substantiate their finding that the statements found to be defamatory had actually been disseminated, as it had never been established who had distributed the disputed text, when and how it had been done or what the circle of its actual readership had been. Second, the courts had ignored that the District Administration had been in control of most of the copies of the book before the defamation proceedings had been instituted and that the applicant’s role in the dissemination of the text, if any, had been negligible at most. Finally, in assessing the damage purportedly caused to the plaintiff, the domestic judicial authorities had arbitrarily disregarded numerous materials (such as newspaper articles criticizing M.L. and declarations signed by people who had purportedly suffered injustice because of him) showing that the disputed statements did not emanate from the applicant and that he had merely compiled information which had already been circulated widely.

62. The Government contested the applicant’s submissions and maintained that he had benefitted from all the guarantees of a fair trial by independent and impartial courts which had properly assessed the factual evidence before them and given sufficient reasons for their decisions. In particular, the applicant’s allegations that he could not be held liable for the dissemination of the disputed statements had been at odds with his own submissions made to the City Court on 5 October 2000, according to which he had obtained and distributed fifty copies of the book. His later allegation that he had destroyed one hundred copies of the book, which contradicted his earlier statements and other evidence on file, showed that he had been acting in bad faith and had tried to mislead the court. The civil courts, not having an investigative function, had based their conclusions on the evidence provided by the parties which, in the circumstances of the present case, was sufficient for making the relevant conclusions.

63. The Court reiterates that Article 6 § 1 obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument (see Van de Hurk v. the Netherlands, 19 April 1994, § 61, Series A no. 288). This obligation is an essential procedural safeguard under Article 6 § 1 of the Convention, as it demonstrates to the parties that their arguments have been heard, affords them the possibility of objecting to or appealing against the decision, and also serves to justify the reasons for a judicial decision to the public (see, e.g., Suominen v. Finland, no. 37801/97, §§ 36-37, 1 July 2003; and Boldea v. Romania, no. 19997/02, §§ 32-33, 15 February 2007). The principle of fairness enshrined in Article 6 of the Convention would be disturbed where domestic courts ignore a specific, pertinent and important point made by an applicant (see, e.g., Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006, and Mala v. Ukraine, no. 4436/07, § 48, 3 July 2014). Otherwise, it is in the first place for the national courts to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness (see, e.g., Mala, cited above, § 47).

64. Turning to the facts of the present case, the Court notes the scarcity of the reasoning provided in the City Court’s judgment of 11 October 2002 in support of some of its conclusions. Most of the court’s reasoning is dedicated to substantiating a conclusion that the factual allegations against the plaintiff were false. Other conclusions, such as that the book had been “widely read” or that the plaintiff’s reputation had suffered damage warranting the payment of compensation are couched in rather formulaic terms, without any further explanation as to why the court made such findings and on which evidence they were based. The judgments taken by the appellate court and the court of cassation endorsed the above reasoning as sufficient, without responding expressly to the applicant’s argument concerning the role of the District Administration in the distribution of the books and a number of his other submissions.

65. On the other hand, the Court does not find any basis on which to conclude that the overall factual findings of the domestic courts in the case at issue were manifestly arbitrary or that the scarcity of the reasoning provided extinguished the very essence of the applicant’s procedural rights under Article 6 § 1 (see Thoma v. Luxembourg no. 38432/97 (dec.), 25 May 2000 and contrast, Boldea, cited above, §§ 33-35).

66. In particular, it is clear from the case file that the applicant authored the disputed article with a direct purpose for it to reach the public, and that his text was printed in a book and became known to persons other than the plaintiff. It is also notable that the disputed text, phrased as a recital of the applicant’s own convictions and without any references to external sources, was intended to leave the reader with a clear impression that the plaintiff had been involved in corrupt and unfair dealings incompatible with his public office. The Court finds that this message was as such inherently damaging to the plaintiff’s reputation and accepts that once the book, in which it was published, entered public domain, it was a daunting task to establish the circle of its actual and potential readership or to quantify the real impact this message would have on them over the period of its circulation. In this connection, the Court can also not accept the applicant’s assertion that the readers would have necessarily been aware of the factual background of the views he had sought to convey. Overall, there is nothing in the case file to warrant a finding that a more detailed analysis of the actual scope of dissemination of the disputed passage or its actual impact on the diminishment of the plaintiff’s prestige could have materially affected the general conclusions reached by the domestic courts as to whether or not the defamation offence had taken place.

67. In so far as the applicant complained that the domestic courts had failed to address his arguments concerning the important role of the District Administration in distributing the books, the Court recalls that the District Administration was not a respondent in the proceedings at issue and that the question of its liability was therefore outside their scope. In the Court’s view, an assessment of the District Administration’s role could have been of importance in the applicant’s defamation proceedings, had there been a question of excluding his own responsibility in view of this role. However, the applicant being the author of the disputed text published with his consent in a book intended for distribution to the public, the Court finds no arbitrariness in the fact that his responsibility in its dissemination was found to be engaged regardless of how many books he had personally distributed to the end readers. Based on the materials at hand, the Court cannot speculate either as to whether the role of the District Administration was accounted for in the determination of the amount of damages levied against the applicant, particularly, as the applicant himself failed to provide a clear and consistent information concerning his own role in the actual distribution of the book (see paragraphs 16 and 18 and 62 above).

68. In view of the above considerations, the Court concludes that the applicant failed to show that the domestic judicial authorities had ignored a specific, pertinent and important point made by him in context of the proceedings at issue. In these circumstances, it is not for the Court to take upon itself the role of a linguistic corrector or to second-guess the domestic courts’ judgment involving the use of subjective and unquantifiable categories, such as that the publication had been “widely read” or “negatively affected” the plaintiff’s image.

69. Accordingly, the Court does not find that in the circumstances of the present case the very fact that the domestic courts did not elaborate in more detail on the reasoning for their judgments and did not expressly respond to some of the applicant’s arguments resulted in his rights guaranteed by Article 6 § 1 being extinguished.

70. The Court therefore finds that there has been no violation of Article 6 § 1 of the Convention in this respect.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

71. The applicant complained that the State authorities had arbitrarily and unfairly interfered with his freedom to criticise the conduct of a public official. The applicant relied on Article 10 of the Convention, which, in so far as relevant, reads 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 ... .

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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

A. Admissibility

72. The Government did not submit any comments concerning the admissibility of this complaint.

73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

74. The applicant submitted that there was no pressing social need for restricting his expression in the present case. Comparing his case to that of Lingens v. Austria (8 July 1986, Series A no. 103), he submitted that his publication constituted a legitimate “value judgment” concerning misconduct of a public official based on information which had already been common public knowledge. The judicial authorities had failed to recognise his text as an expression of a “value judgment” and had disregarded the evidence presented by him in support of the truthfulness of the underlying factual allegations.

75. The applicant further submitted that the interference was also disproportionate. In particular, he had been made to pay a sum which had no connection to the damage purportedly suffered by the plaintiff or to the applicant’s personal role in the dissemination of the disputed text and which had been onerous on his family budget. Furthermore, the vagueness of the language used in the judgment ordering the statements to be retracted had prevented him from executing the order and had resulted in M.L. publishing an erratum sheet at his own instigation, in which he had accused the applicant of lying and undermined his credibility as an academic researcher.

76. Lastly, the overall manner in which the State authorities had approached the applicant’s case had been unlawful, corrupt, unfair and humiliating. In particular, the District Administration had failed to execute the court judgment of 5 October 2000 and had been distributing copies of the book as it saw fit, with pages cut out, while the proceedings had been pending. The conduct of the authorities had a chilling effect on the applicant’s research, as it kept him in a state of continuous uncertainty as to the fate of his publication and had resulted in a situation where the much-awaited research, of which he was a co-author, had not achieved the publicity and social acclaim it deserved.

(b) The Government

77. The Government submitted that the finding against the applicant in the defamation proceedings constituted a legitimate restriction of his rights guaranteed by Article 10 of the Convention. In particular, it pursued a legitimate aim, namely the protection of M.L.’s reputation, and had been based on provisions of the domestic law which were accessible and foreseeable. They submitted that the interference was also “necessary in a democratic society” and proportionate to the aim pursued. In particular, the domestic case-law at the material time had been well-equipped to differentiate between value judgments and statements of fact. The applicant in the present case had been held liable not for expressing a value judgment, but for having made false factual allegations accusing M.L. of serious misconduct. He himself had treated those allegations as factual in both the domestic and the Convention proceedings in his case, and had sought to have documentary and other evidence examined in support of his position. The domestic courts had thoroughly examined the evidence presented by both parties and had dismissed the applicant’s arguments as speculative and unsubstantiated in their reasoned judgments.

78. The applicant had enjoyed the benefits of a fair procedure. His arguments had been examined by independent and impartial courts at three levels of jurisdiction. The judicial authorities had enabled him to present evidence in support of his position and had stated relevant and sufficient reasons for their findings.

79. Lastly, in so far as the applicant complained that the District Administration had acted unlawfully, in particular, by failing to return the books to the publisher or distributing them contrary to his volition, he had not duly raised these complaints before the domestic authorities.

2. The Court’s assessment

80. The Court notes that the finding against the applicant in the defamation proceedings constituted an interference with his rights guaranteed under Article 10 of the Convention (see Myrskyy v. Ukraine, no. 7877/03, § 37, 20 May 2010). It further agrees that this interference in the present case was in accordance with the law (see Ukrainian Media Group v. Ukraine, no. 72713/01, §§ 48-50, 29 March 2005 and Gazeta Ukraina-Tsentr v. Ukraine, no. 16695/04, § 48, 15 July 2010) and pursued the legitimate aim of protecting M.L.’s reputation. It remains therefore to be determined whether this interference was also “necessary in a democratic society”.

81. In this connection, the Court reiterates that the test of necessity requires it to determine whether the interference 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 were relevant and sufficient (see, among many other authorities, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88 and 90 ECHR 2004-XI). The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts, but rather to review whether the national authorities applied standards which were in conformity with the principles embodied in Article 10 and whether in this context, they relied on an acceptable assessment of the relevant facts (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I; News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 52, ECHR 2000-I; and Ringier Axel Springer Slovakia, a. s. v. Slovakia, no. 41262/05, §§ 100 and 106, 26 July 2011). The Court must also ascertain whether the domestic authorities struck a fair balance between, on the one hand, the protection of freedom of expression as enshrined in Article 10, and, on the other, the protection of the reputation of those against whom allegations have been made, a right which, as an aspect of private life, is protected by Article 8 of the Convention (see, among other authorities, Chauvy and Others v. France, no. 64915/01, § 70 in fine, ECHR 2004-VI; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, 10 November 2015). In addition, the fairness of the proceedings, the procedural guarantees afforded and the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference (see Kwiecień v. Poland, no. 51744/99, § 46, 9 January 2007).

82. Turning to the facts of the present case, the Court finds that they are materially different from those examined in the Lingens case cited by the applicant in support of his complaint. That case concerned the freedom of a journalist to criticise a leading politician at the national level in a periodical featuring discussion on current affairs, whereas the present case concerns an academic criticizing the performance of a contemporary local official in an otherwise uncontroversial book presenting archaeological and historical research. The Court agrees that the subject of the applicant’s communication as such related to a legitimate matter of public concern. Nevertheless, it fails to see the pertinence of the forum chosen by the applicant for expressing his critical views and does not consider that the context in which they were published warranted the application of the same “high tolerance” standard appropriate for media cases such as Lingens (cited above, §§ 41-42), or for other cases involving expression in the context of pluralistic debate and exchange of opinions on matters of serious public concern (see Andrushko v. Russia, no. 4260/04, §§ 41 and 45-46, 14 October 2010 and Steel and Morris v. the United Kingdom, no. 68416/01, § 89, ECHR 2005-II).

83. The Court next notes that in the Lingens case the applicant was penalised for disseminating critical value judgments not susceptible of proof, whereas in the present case the core of the defamation action against the applicant concerned the accuracy of three specific factual allegations: that the mayor had breached election legislation to obtain favourable election results, that he had arranged for a disabled citizen to be deprived of a plot of land in favour of his personal acquaintance, and that his family had corruptly acquired a house. The Court notes that these accusations, phrased as direct allegations of potentially criminal misconduct, were quite serious. It further reiterates that where allegations are made about the conduct of a third party, it may sometimes be difficult to distinguish between assertions of fact and value judgments (see Cumpǎnǎ and Mazǎre, cited above, § 99). Nevertheless, even a value judgment may be excessive if it has no factual basis to support it (ibid). Accordingly, the Court finds no issue with the fact that the domestic courts required the applicant to substantiate the factual allegations underlying the views he expressed which, in the absence of sufficient proof, could be regarded as defamatory. It is also notable that the applicant himself treated the above factual allegations as “true” in his submissions to the domestic judicial authorities and to the Court and presented various documents which, in his view, showed that his statements were accurate. While some sentences of the disputed text (namely the first sentence, where M.L.’s conduct was compared to that of a “feudal prince” and the final sentences, where the applicant expressed a general opinion about corrupt officials) clearly constituted value judgments, the Court finds that they were so deeply intertwined with the overall factual message that the very fact that the domestic courts had not addressed them separately in their judgments does not of itself raise an issue in the present case.

84. The Court next observes that it has not been argued in the present case that the applicant was precluded from submitting any evidence he deemed necessary in support of the veracity of the challenged factual statements in the domestic proceedings (compare and contrast with Andrushko v. Russia, no. 4260/04, § 55, 14 October 2010) or, more generally, that the courts made their decisions without analysing some material important for contextual assessment of the applicant’s publication (compare and contrast with Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 3), no. 37986/09, §§ 80 and 84, 7 January 2014). On the contrary, it appears that the City Court honoured the applicant’s efforts to provide complete information, for instance, by adjourning a hearing at his request with a view to ordering pertinent archive material (see paragraph 14 above).

85. The Court next observes that in finding that the applicant had insufficient sources to substantiate the sweeping and disparaging conclusions he had made concerning M.L.’s character, the City Court cited a number of sources, including official documents, among them a court judgment, in which an allegation of election fraud by M.L. had already been dismissed (see paragraph 27 above). From the material before it, the Court does not consider that the domestic courts took an arbitrary decision or overstepped their margin of appreciation in finding that the applicant had insufficiently substantiated his factual conclusions, and that his statements concerning M.L.’s misconduct had accordingly been defamatory.

86. In so far as the applicant submitted that the interference with his rights did not correspond to a pressing social need as the disputed statements had in fact not been “disseminated” at the time the defamation action had been lodged and that he should not have been held liable for any subsequent dissemination, the Court has already dismissed similar arguments when examining his complaint under Article 6 of the Convention (see paragraphs 65-70 above).

87. In view of all the above, the Court concludes that the domestic courts provided relevant and sufficient reasons justifying a conclusion that interference with the applicant’s rights under Article 10 corresponded to a “pressing social need”. As regards the proportionality of this interference, the Court recalls that the applicant was ordered to cover the costs of publishing an erratum sheet to the book containing a retraction of the statements found to be defamatory and to pay M.L. UAH 5,000 in respect of non-pecuniary damage.

88. In so far as the applicant complained that he had been obliged to cover the costs of publishing a retraction by a court order so vague and overbroad that it had been practically impossible to enforce it, the Court does not find that, regard being had to the margin of appreciation afforded to the national courts, the order to retract defamatory statements was as such disproportionate in the present case, particularly given the nature of the publication, which did not afford M.L. any alternative forum for addressing its readers. It further recalls that it is not evident that the applicant did or is likely to suffer any adverse consequences for not having paid for the publication of the retraction to date. While he complained that the District Administration had failed to return the books to the publishing house and that M.L. had published, at his own expense, a humiliating “pseudo-retraction”, the Court does not see any direct causal connection between these events and the wording of the disputed court order. In view of the above, the Court considers that the applicant’s complaint concerning the court order to pay for publishing of a retraction is not substantiated.

89. Neither does the Court find that the amount of compensation levied against the applicant (UAH 5,000) was as such excessive. Despite complaining that the amount had a disproportionate impact on his family budget, the applicant did not disclose details of it either in the domestic or in the Convention proceedings. It is also noteworthy that he in fact paid his judgment debt in monthly instalments amounting to 20% of his retirement pension over an extended period of time. In the absence of any more detailed information as to how this payment affected the applicant’s everyday life, the Court cannot conclude that he suffered an excessive and disproportionate financial burden.

90. The Court is mindful that, as noted above, the domestic courts omitted responding directly to the applicant’s arguments concerning his allegedly unimportant personal role in distributing the books and lack of evidence that the plaintiff’s prestige had in fact diminished as a result of his publication. Moreover, none of the judgments given by the domestic courts in the applicant’s case included express language indicating that they had acknowledged the existence of the conflicting rights to reputation and freedom of expression in the case at issue, which required striking a fair balance between them (see, e.g., Aksu v. Turkey [GC], nos. 4149/04; and 41029/05, § 66, ECHR 2012). In this connection, the Court would reiterate the importance of an obligation to provide reasons for decisions concerning a restriction of the right to freedom of expression, which offers an important procedural safeguard against arbitrary interferences with this right (see, mutatis mutandis, Boldea, cited above, § 61; Nur Radyo ve Televizyon Yayıncılığı A.Ş. v. Turkey (no. 2), no. 42284/05, §§ 49-50, 12 October 2010; Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, §§ 67-68, 8 October 2013; and Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 2), no. 21666/09, § 53, 7 January 2014). However, in the particular circumstances of the present case, having established that the substantive conclusions reached by the domestic courts concerning the defamatory nature of the statements submitted by the applicant for publication had not been arbitrary and the penalties imposed on him had not been excessive, the Court finds that the absence of a more detailed reasoning for the above conclusions alone cannot justify a finding that the interference was “not necessary”.

91. In view of the above, the Court considers that it is not necessary to examine other arguments adduced by the applicant and finds that there has been no violation of Article 10 of the Convention in the present case.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

92. The applicant also complained, under Article 1 of Protocol 1 to the Convention, that his rights during the enforcement of the judgment against him had been breached, and that the District Administration had acted unlawfully in taking the books from the publishing house, not returning them in accordance with the court order of 5 October 2000, and distributing them as they saw fit having cut out the pages containing the disputed statements. In addition, he complained under Article 13 of the Convention that he had had no effective remedies to complain about various elements of purported procedural unfairness in the proceedings to which he was a party and the allegedly unlawful conduct of various authorities and cited Article 17 of the Convention with respect to the facts of the present case.

93. Having considered these complaints in the light of all the material in its possession, the Court finds that, in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

94. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

95. 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.”

96. The applicant did not submit a claim for just satisfaction within the time-limit allotted to him for that purpose. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning the excessive length of the proceedings, inadequate reasoning of the court judgments and restriction of the applicant’s freedom of expression admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings;

3. Holds that has been no violation of Article 6 § 1 of the Convention in respect of the quality of the reasoning in the courts’ judgments;

4. Holds that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 21 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

[1] For internal use: about 1,050 euros at the material time.

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You are here: BAILII >> Databases >> European Court of Human Rights >> SIREDZHUK v. UKRAINE - 16901/03 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 99 (21 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/99.html Cite as: [2016] ECHR 99