Last Updated on April 24, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 46928/07
Oleg Mykolayovych GOLUBENKO
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 12 March 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 23 October 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Oleg Mykolayovych Golubenko, is a Ukrainian national, who was born in 1965 and lives in Kyiv. He was admitted to the bar in 1997 and was granted leave to present his own case before the Court.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant published an article in the issue of Україна-Business (Ukraine-Business) newspaper for 24-31 October 2005. The article, entitled “Businessmen Civil Servants or the Ministry’s Concession” (Бізнесмени-чиновникиабо Концесія в міністерстві), was critical of the work of the Ministry of Justice’s department responsible for regulation of forensic expert work. At the time the applicant was a member of the board of an association active in the field of car accident investigations (Всеукраїнська асоціація аварійних комісарів). He subsequently joined the National Union of Journalists.
5. The text of the article has not been provided to the Court. The following passages of the article, quoted in the domestic courts’ decisions, were declared defamatory:
i. “Here, we will try briefly to tell the story of how enterprising officials of the Ministry of Justice, through their hard work over the years, created a unique system of making money in the field of forensic expert examinations… This system allows public servants (державним людям), to use their official power to run their own business, influence the decision-making important for that business and, at the same time, enjoy all the privileges of civil servants. “We cut the money – we pick the splinters” (Гроші рубаємо – тріски підбираємо) – this proverb has been guiding the activities of the entire Department of the Ministry, namely – Department of Expert Support of Administration of Justice, headed by Ms G. [full name]…”
ii. “… It was precisely under her guidance that the [Department] prepared, and the Ministry of Justice enacted, orders no. 11/5-a of 18 April 2000 and no. 4/5 of 17 January 2002, which amended the list of the main types of forensic examinations which can be done… by [private entities and individuals]. These changes virtually excluded private business from the market for a whole range of expert examinations, first of all those relating to the examination of the technical condition of vehicles and their parts, as well examinations of trace evidence in the field of transportation (транспортної трасології).”
iii. “However, soon that seemed not enough to those regulating forensic examinations. In order to prevent undesirable “reexamination” of expert examination results (з метою запобігання небажаних «повторок»), a sort of “non-aggression pact” (cвоєрідна внутрішня система ненападу)among State Forensic Examination Institutes was created. To do this, the very same Department of the Ministry prepared an Instruction (Управління Мінюсту підготувалоІнструкцію) prohibiting the Institutes from conducting new examinations after their colleagues from another Institute, until all experts of that other Institute have expressed their opinions as to the objectivity of their colleague’s conclusion. This Instruction made it almost impossible to refute the findings of an expert examination by way of a new one.”
iv. “It has become simply meaningless to talk about some kind of objectivity of the findings of forensic examinations under the existing system of organisation of forensic experts’ work. And, besides, is objectivity really needed where earning big money fast and easily is at the top of the agenda (чи потрібна об’єктивність там, де гостро стоїть питання легкого заробляння швидких й великих грошей)? After all, they pay well not for objectivity, but for a desired, and therefore, most often biased result… How did the system of prices for the desired conclusion of an expert become routine business…”
v. “One can only guess how much money has been earned (нарубали) by entrepreneurs in civil servants’ uniforms [from providing access to the profession of an expert in car valuations] considering that the unofficial part of the certification [for some candidates to become car valuation experts] is 1,000 dollars and more (неофіційна частина атестації окремих представників, шанованої тепер Мін’юстом автотоварознавчої професії складала 1000 доларів і більше)!”
6. The then-head of the Ministry of Justice department mentioned in the article, Ms G., brought a defamation claim against the applicant and the newspaper.
7. Before the courts the defendants submitted that the impugned statements did not concern the plaintiff, that they constituted value judgments and had sufficient factual basis.
8. On 31 July 2006 the Makiyivka Girnytsky District Court allowed G.’s claim. On 28 November 2006 the Donetsk Regional Court of Appeal upheld that decision.
9. The courts declared the above five passages statements of facts, rather than value judgments, and held them untruthful and defamatory.
10. For the courts, the first statement (see paragraph 5 (i) above), being an introductory passage to the article, as well as the overall thrust of the article, clearly indicated that all the impugned statements and the entire article had been aimed at G.
11. The courts found that the meaning of the impugned passages was that the plaintiff had restricted access of private experts to the market of expert assessment in the field of car accidents, for the benefit of her own private business interests, and that, on her initiative, the Ministry had also banned employees of State expert institutions from questioning each other’s assessments.
12. However, the courts found those statements untrue. In particular, as far as the second and third statements were concerned (see paragraph 5 (ii) and (iii) above), the courts found that:
(i) G. had been appointed to her position on 24 November 1997, that is after access of private experts to the expert examinations in question has already been restricted. During her tenure, the range of expert examinations which could be performed by private experts had in fact increased (see paragraphs 19 to 21 below). Indeed, in the course of the proceedings before the first-instance court the newspaper’s representative had conceded that point;
(ii) the plaintiff’s evidence showed that, by the end of 2005, there had been 143 instances where State Forensic Institutes performed new forensic examinations after each other and forty-four instances of them disagreeing with each other. The defendants had not provided any evidence to disprove that. No “Instruction” mentioned in the third statement (see paragraph 5 (iii) above) ever existed.
13. The courts found that the other contested statements, such as the one insinuating that the plaintiff had her own business which she was putting in an advantageous sitution through her work at the Ministry (see paragraph 5 (i) above), lacked any substantiation.
14. The courts found that the defendants’ statements and attitude demonstrated that they aimed to defame G., that they had been engaged in a campaign for her dismissal and the impugned untruthful publication was intended to furnish grounds for that campaign.
15. Among other legislative provisions, the courts invoked constitutional provisions guaranteeing freedom of expression and protection of honour and dignity of individuals and the Civil Code provisions protecting reputation (see reference in paragraph 18 below).
16. The newspaper was ordered to publish a retraction and the applicant to pay Ukrainian hryvnia 10,000 (around 1,450 euros at the time) in damages.
17. On 30 March 2007 a judge of the Supreme Court refused the applicant leave to appeal on points of law, holding that there was no indication of error in the lower courts’ decisions. The applicant was informed of that decision on 24 April 2007.
B. Relevant domestic law and practice
18. Relevant provisions of the Civil Code providing for the protection of reputation can be found in Lykin v. Ukraine (no. 19382/08, § 16, 12 January 2017).
19. On 15 July 1997 the Ministry of Justice, by its order no. 285/7-A, enacted two lists: one defined the types of forensic expert examinations which could be conducted by experts employed by the State Forensic Examinations Institutes and the other, much shorter, the types of examinations which could also be conducted by private experts (“the State Experts List” and the “Private Experts List” respectively).
20. According to the State Experts List, as enacted in 1997 and throughout the relevant period, only State experts could conduct the examinations listed in lines 10.2 and 10.4, “Examination of the technical conditions of vehicles” (Дослідження технічного стану транспортних засобів) and “Trace evidence examinations in the field of transportation” (Транспортно-трасологічні дослідження) respectively. The 2000 and 2002 amendments (see paragraph 5 (ii) above and paragraph 21 below) did not concern that provision. It remained in force unchanged throughout the relevant period.
21. The Private Experts List, as originally enacted in 1997 and as worded throughout the relevant period, allowed private experts to estimate the value of cars and motorcycles and the damage caused to their owners. The 2000 amendment (order of 18 April 2000 no. 11/5-a) added valuation of facilities under construction and the 2002 amendment (order of 17 January 2002 no. 4/5) valuation of boats and damage to them to the Private Expert List. No other change in this field was mentioned in the orders in question.
COMPLAINT
22. The applicant complained under Article 10 of the Convention that the domestic courts’ decisions in his case constituted a violation of his right to freedom of expression.
THE LAW
23. The applicant complained of a violation of his right to freedom of expression, guaranteed by Article 10 of the Convention, which reads:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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. The parties’ submissions
24. The Government considered that the application had been lodged outside of the six-month period, to be counted, in their opinion, from the date of the Supreme Court Judge’s ruling (see paragraph 17 above).
25. As to the substance of the applicant’s complaint, the Government submitted that they had no access to the domestic case-file, as it was in territory not under the Government’s control (see Khlebik v. Ukraine, no. 2945/16, §§ 9-12, 25 July 2017, and Bekalyuk v. Ukraine (dec.), no. 44110/15, §§ 3-7, 3July 2018 (Committee)). Therefore, their observations were limited to the documents provided by the applicant, essentially decisions of domestic courts. Based on those decisions, the interference with the applicant’s right to freedom of expression had been lawful, had pursued the legitimate aim of protecting the plaintiff’s reputation and had been proportionate.
26. The applicant insisted that his statements had been value judgments and that damages awarded were excessive. The statements had had sufficient basis in fact. In particular, he made the following comments in respect of the second and third statements respectively (see paragraph 5 (ii) and (iii) above):
(i) the orders of the Ministry of Justice of 2000 and 2002, enacted during G.’s tenure as head of the Ministry’s relevant department, restricted access of private experts to the types of expert examinations listed in lines 10.2 and 10.4 (examination of the technical condition of vehicles and trace evidence examinations respectively, see paragraph 20 above);
(ii) G. had not been mentioned in that statement. The statement had been based on a situation which had occurred in the applicant’s law practice, in a civil case examined in Yenakiyeve of the Donetsk Region from 2000 to 2002. According to the applicant, in that case the Kharkiv State Forensic Examinations Institute had refused to carry out a new examination following an examination by the Donestsk State Forensic Examinations Institute. According to the applicant, he had asked the first-instance court, which examined the defamation claim, to request material from that previous civil case but the court had refused.
B. The Court’s assessment
27. The Court notes at the outset that, contrary to the Government’s argument (see paragraph 24 above), the application was lodged within the six-month time-limit, counted from the day the applicant learned of the final domestic decision in his case (see paragraph 17 above).
28. The Court finds that the decisions of the domestic courts constituted an interference with the applicant’s freedom of expression. Indeed, the Government did not contest that point. The interference was prescribed by law, namely the relevant provisions of the Civil Code (see paragraph 15 above), and pursued a legitimate aim, namely “the protection of the reputation or rights of others” (see, for example, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no 17224/11, § 73, 27 June 2017).
29. As far as “necessity in a democratic society” is concerned, the Court reiterates that the adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court (see Delfi AS v. Estonia [GC], no. 64569/09, § 131, 16 June 2015).
30. However, the Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation (see Bédat v. Switzerland ([GC], no. 56925/08, § 48, 29 March 2016).
31. The Court observes that the domestic courts gave detailed reasons for their decisions which were in line with the Court’s case-law. In particular, the courts drew a distinction between value judgments and statements of fact, having concluded that the impugned statement constituted the latter. They also acknowledged that the case involved a need to balance freedom of expression and protection of reputation (see paragraphs 9 and 15 above and contrast, for example, Instytut Ekonomichnykh Reform, TOV v. Ukraine, no. 61561/08, § 64, 2 June 2016).
32. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the the domestic courts (see Prager and Oberschlick v. Austria, 26 April 1995, § 36, Series A no. 313). In any event, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient “factual basis” for the impugned statement, failing which it will be excessive (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007‑IV).
33. The applicant has not submitted any argument or material that would put in doubt the domestic courts’ conclusions that his statements were either demonstrably untrue or lacked sufficient factual basis.
34. In this respect the Court is particularly struck by the second and third passages of the applicant’s article (see paragraph 5 (ii) and (iii) above).
35. As to the former, the precision of detail, notably the dates and numbers of the orders of the Ministry of Justice cited (see paragraph 5 (ii) above), make it difficult to perceive it as anything other than a very precise factual statement. However, the actual content of those orders (see paragraphs 19 to 21 above) fully confirms the conclusion of the domestic courts: those orders made the situation of private experts more, rather than less favourable and introduced no change ascribed to them by the applicant in his statement (see paragraph 12 (i) above).
36. Indeed, the applicant’s own submissions before the Court make that evident: he referred to the domestic rules which, as the domestic courts correctly concluded, had pre-dated the plaintiff’s tenure at the Ministry of Justice (see paragraphs 12 (i) and 26 (i) above) and in no way explained his actual statement in the article.
37. The applicant was an experienced lawyer and, apparently, a specialist in the field (see paragraphs 1 and 4 above). This is relevant to the conclusion that, by formulating his statement the way he did, in particular by referring to specific dates and numbers of the orders of the Ministry of Justice, he was making a very specific factual statement.
38. The applicant attempted to justify his third impugned statement in the article (see paragraph 5 (iii) above) by his personal experience in a previous case in which he had been involved as a lawyer (see paragraph 26 (ii) above). However, his actual statement did not refer to any situation which may have arisen in a particular case but rather communicated the idea that there was a formal document instigated by the plaintiff which banned State forensics institutions from conducting new expert examinations after each other. In the article, the word “Instruction” (Інструкція) was capitalised, communicating the idea of a type of official document issued by executive agencies in Ukraine (see, for example, Gukovych v. Ukraine, no. 2204/07, §§ 49 and 55, 20 October 2016 and Surikov v. Ukraine, no. 42788/06, § 44, 26 January 2017) rather than some unofficial suggestion or encouragement. The domestic courts’ finding that there was no such document and that there was in fact no evidence of the State forensics institutions operating in such way stands uncontested.
39. In this context the Court must stress that, in exercising its supervisory jurisdiction, the Court may examine whether the applicant acted in good faith (see Kącki v. Poland, no. 10947/11, § 49, 4 July 2017). This obligation applies even if statements in issue constitute a comment on a matter of public interest (see, mutatis mutandis, Travaglio v. Italy (dec.), no. 64746/14, §§ 33-36, 24 January 2017). The Court is prepared to accept that the impugned statements concerned a matter of public interest, namely the organisation of forensics work in Ukraine. However, in view of the above considerations, the Court finds that the applicant has failed to show that, in making them, he acted in good faith.
40. Moreover, the Court has repeatedly stressed the need to see allegedly defamatory statements in the overall context of the publication (see, for example, Instytut Ekonomichnykh Reform, cited above, § 54, and Ziembiński v. Poland (no. 2), no. 1799/07, § 45, 5 July 2016). Merely to scrutinise each of the statements taken into consideration by the national authorities in reaching their decisions concerning alleged defamation may lead one to lose sight of the article’s overall content and its very essence (see Perna v. Italy [GC],no. 48898/99, § 47, ECHR 2003‑V).
41. The applicant has failed to make an arguable case that the domestic courts’ assessment, to the effect that the article as a whole had been aimed at spreading incorrect information about G., was erroneous. Indeed, he has not provided the Court with the full text of the impugned article itself nor pointed to any difficulty which prevented him from doing so (compare paragraph 25 above and see, for example, Shevchenko v. Ukraine (dec.), no. 24753/06, §§ 18 and 19, 10 May 2016 (Committee)). In such circumstances the Court has no basis on which to question the assessment of the impugned article as a whole adopted by the domestic courts which had all the relevant material before them.
42. There is equally no indication that the civil sanction imposed on the applicant was disproportionate in light of the circumstances (compare, for example, Travaglio, cited above, § 37). In particular, he did not submit that the amount of damages he was ordered to pay caused him particular financial hardship (compare Siredzhuk v. Ukraine, no. 16901/03, § 89, 21 January 2016).
43. Accordingly, the applicant has failed to make an arguable case that the decisions of the domestic courts in his case disclose a breach of his right to freedom of expression.
44. It follows that his complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 4 April 2019.
Milan Blaško Síofra O’Leary
Deputy Registrar President
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