The applicant company alleged, in particular, that the judge of the first-instance court which had decided its case (in application no. 49440\/08) lacked impartiality and that that court had not been a \u201ctribunal established by law\u201d for the purposes of Article 6 \u00a7 1 of the Convention. It further alleged that the domestic courts\u2019 decisions concerning two articles it had published had breached its freedom of expression (Article 10 of the Convention).<\/p>\n
FOURTH SECTION JUDGMENT This judgment will become final in the circumstances set out in Article\u00a044 \u00e0\u00a02 of the Convention. It may be subject to editorial revision.<\/p>\n In the case of Editorial Board of GrivnaNewspaper v. Ukraine,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:<\/p>\n Jon Fridrik Kj\u00f8lbro, President, Having deliberated in private on 26\u00a0March 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in two applications (nos.\u00a041214\/08 and 49440\/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Ukrainian company,Editorial Board of GrivnaNewspaper (\u201cthe applicant company\u201d), on 18 June 2008 and 9 September 2008 respectively.<\/p>\n 2. The applicant company was represented by Mr O.D. Ivanyuta, a lawyer practising in Kherson. The Ukrainian Government (\u201cthe Government\u201d) were represented by their Agent, Mr I. Lishchyna.<\/p>\n 3. The applicant company alleged, in particular, that the judge of the first-instance court which had decided its case (in application no. 49440\/08) lacked impartiality and that that court had not been a \u201ctribunal established by law\u201d for the purposes of Article 6 \u00a7 1 of the Convention. It further alleged that the domestic courts\u2019 decisions concerning two articles it had published had breached its freedom of expression (Article 10 of the Convention).<\/p>\n 4. On 15 May 2017 notice ofthe above complaints was givento the Government and the remainder of the applications was declared inadmissiblepursuant to Rule\u00a054 \u00a7 3 of the Rules of Court.<\/p>\n 5. As Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court), the Vice-President of the Section decided to appoint Mr Sergiy Goncharenkoto sit as an ad hoc judge (Rule\u00a029\u00a0\u00a7\u00a01(a)).<\/p>\n THE FACTS<\/strong><\/p>\n I. THE CIRCUMSTANCES OF THE CASE<\/p>\n A. Background<\/strong><\/p>\n 6. The applicant, Editorial Board of Grivna Newspaper, is a Ukrainian single shareholder company which has its registered offices in Kherson. Grivna is a regional newspaper published in that city (hereinafter \u201cthe newspaper\u201d).<\/p>\n 7. In 2006 the newspaper published two articles containing negative statements about Mr I., who from 1996 to 2012 was President of the Kherson Regional Court of Appeal. The articles gave rise to defamation proceedings, which are the subject of the present case. The translation of the relevant parts of the articles is given below. The passages which were the subject of the domestic proceedings are underlined and numbered for reference. The parts of the articles rephrased and summarised by the Court are presented in square brackets. Where initials are used, the actual articles contained I.\u2019s full name: his first name, surname and\/or patronymic in various combinations.<\/p>\n 8. In January 2006 the plenary Verkhovna Rada of Ukraine (hereinafter \u201cthe Parliament\u201d) was to examine the question of I.\u2019s appointment to the position of judge on a permanent basis, until retirement age. The matter was to be examined because I.\u2019s previous ten-year appointment was expiring (see the relevant constitutional and legislative rules concerning the appointment of judges at paragraph 52 below).<\/p>\n 9. Prior to the Parliament\u2019s session, on 5 January 2006 another regional newspaper, Vgoru, published an article alerting the readers that the matter of I.\u2019s permanent appointment would be examined by Parliament and urging readers to send comments on I.\u2019s candidature to the relevant parliamentary committee.<\/p>\n B. Article A \u2013 application no. 49440\/08<\/strong><\/p>\n 1. Publication<\/em><\/p>\n 10. On 12 January 2006 Parliament examined the question of I.\u2019s permanent appointment. Owing to concerns raised by some Members of Parliament about I.\u2019s candidature (see the summary of the transcript of the debate at paragraph 13 below), Parliament decided to adjourn the examination of the question.<\/p>\n 11. An article, published in the issue of the newspaper dated 19\u201126\u00a0January 2006, was dedicated to the above event and entitled \u201cPurgatory for Judges\u201d (\u0427\u0438\u0441\u0442\u0438\u043b\u0438\u0449\u0435 \u0434\u043b\u044f \u0441\u0443\u0434\u0435\u0439). It spread over two full pages. The first page of the article contained the following text:<\/p>\n \u201cWe often criticise Members of Parliament, and for good reason. But this gathering of people with different views and business interests under the same roof sometimes produces unpredictable decisions. Perhaps it is too soon to call this \u2018democracy\u2019. However, the fact that the MPs have \u2018rejected the advances\u2019 of the President of the Kherson Court of Appeal, Mr I. (\u043f\u043e\u043b\u0443\u0447\u0438\u043b \u043e\u0442 \u043d\u0430\u0440\u043e\u0434\u043d\u044b\u0445 \u0434\u0435\u043f\u0443\u0442\u0430\u0442\u043e\u0432 \u00ab\u0433\u0430\u0440\u0431\u0443\u0437\u0430\u00bb) [A1] speaks volumes.<\/p>\n So let us talk about justice in the Kherson Region and first of all about its President Mr I. Below we publish a transcript of the proceedings of Parliament concerning… appointment of judges for life. On 12 January 2006 many Kherson residents watched live this sitting of Parliament and our Mr I. was the main hero of that \u2018show\u2019 [A2]. We have been writing about him much lately. Other publications have been writing even more. We will provide our readers with a brief reminder about Mr I. based only on our own publications which, by the way, have not been challenged. [We] are also in possession of a number of incontrovertible documents.<\/p>\n We give you this in lieu of a prologue: \u2018… In his eight years and counting at the head of the Regional Court I. has found himself dozens of loyal people \u2013 lawyers, judges, and important businessmen \u2013 for whose personal and business interests he has successfully lobbied through favourable judicial decisions [A3] (\u043e\u0431\u0437\u0430\u0432\u0435\u043b\u0441\u044f \u0434\u0435\u0441\u044f\u0442\u043a\u0430\u043c\u0438 \u043f\u0440\u0435\u0434\u0430\u043d\u043d\u044b\u0445 \u043b\u044e\u0434\u0435\u0439…\u0447\u0435\u0439 \u0431\u0438\u0437\u043d\u0435\u0441 \u0438 \u043b\u0438\u0447\u043d\u044b\u0435 \u0438\u043d\u0442\u0435\u0440\u0435\u0441\u044b \u0443\u0441\u043f\u0435\u0448\u043d\u043e \u043b\u043e\u0431\u0431\u0438\u0440\u043e\u0432\u0430\u043b \u0441 \u043f\u043e\u043c\u043e\u0449\u044c\u044e \u043d\u0443\u0436\u043d\u044b\u0445 \u0440\u0435\u0448\u0435\u043d\u0438\u0439 \u0432 \u0441\u0443\u0434\u0430\u0445)…<\/p>\n Here is the conclusion: I. is considered the person in charge and untouchable [A4] in the Kherson Region where 14 governors succeeded each other in 10 years… If one removes him successfully, even if peacefully, the people will believe in changes for the better in the pervasively corrupt judicial system…\u2019<\/p>\n This document arrived in our offices last autumn. It was addressed to a very high\u2011ranking and influential official in the capital in response to his request for information from Kherson. But the first official documents had appeared right after I. took up his position and they corroborate the above-mentioned reasoning. Here is just a short quote from the letter by members of the regional council to the President of the Supreme Court dated 17.02.1998:<\/p>\n \u2018Using his position I. received 100,000 US Dollars from G. who has been released from serving his sentence and confiscation of his assets. He thus helped G. avoid his liabilities vis-\u00e0-vis his… creditors.\u2019<\/p>\n They go on to describe I.\u2019s \u2018tricks\u2019 (\u043f\u0440\u043e\u0434\u0435\u043b\u043a\u0438) on two pages! [A5] And here is the response of the Supreme Court\u2019s President to the above-quoted episode: [there followed a quote from a letter of the President of the Supreme Court stating that in April 1998 I. had been reprimanded for a breach of professional ethics by the Qualifications Commission of Judges].<\/p>\n So I. has been \u2018duly punished\u2019 at the very dawn of his career. It appears that the lesson did him good since our offices have no information about the highest judge of the region receiving any subsequent reprimands. A new person became the Supreme Court\u2019s President soon afterwards and I. could feel more confident. Perhaps his relative at the Supreme Court helped to make it so [A6]. A relative so influential that he is now awaiting his appointment to the Constitutional Court…<\/p>\n …<\/p>\n And now I.\u2019s 10-year term as judge is coming to an end. New laws provide for lifetime appointment by a majority vote in Parliament. And here our President \u2018has made himself famous\u2019nationwide (\u2018\u043f\u0440\u043e\u0441\u043b\u0430\u0432\u0438\u043b\u0441\u044f\u2019 \u043d\u0430 \u0432\u0441\u044e \u0441\u0442\u0440\u0430\u043d\u0443). [A7] [The article then mentioned Judge O., whose resignation was discussed at the same plenary sitting of Parliament as I.\u2019s appointment] But Mr I. is a \u2018hard nut to crack\u2019 and is dreaming of keeping his post no matter what (\u2018\u043a\u0440\u0435\u043f\u043a\u0438\u0439 \u043e\u0440\u0435\u0448\u0435\u043a\u2019 \u0438, \u043d\u0435\u0441\u043c\u043e\u0442\u0440\u044f \u043d\u0438 \u043d\u0430 \u0447\u0442\u043e, \u043e\u043d \u043c\u0435\u0447\u0442\u0430\u0435\u0442 \u0441\u043e\u0445\u0440\u0430\u043d\u0438\u0442\u044c \u043f\u043e\u0441\u0442). [A8]\u201d<\/p>\n 12. The first page of the article also contained extensive quotes from articles previously published in February, April and May 2005 in the same newspaper, in particular one dated 28 April 2005 which discussed assets allegedly belonging to I. and his relatives. That article contained quotes from a letter of the chairman of the Council of Judges dated 8 April 2005. The letter contained an acknowledgement that Judge D., President of the Civil Division of the Supreme Court, was the father-in-law of I.\u2019s son.<\/p>\n 13. Almost the entire second page of the article was taken up by the verbatim reproduction of the transcript of Parliament\u2019s plenary sitting of 12\u00a0January 2006 at which Parliament examined questions about the appointment and resignation of a number of judges. According to the transcript, several MPs said that they had received complaints about the situation in the Kherson Region\u2019s courts. I. denied any wrongdoing and stated that all complaints had been checked by the appropriate authorities and found baseless. The head of the relevant parliamentary committee stated that the committee had also conducted an inquiry into complaints raised about I. and found them to be groundless. He also implied that I. might have been a victim of a slander campaign orchestrated by aggrieved litigants. However, in view of the concerns raised by several MPs, I.\u2019s candidature was withdrawn for additional checks. A brief discussion followed concerning Judge O.,from one of the district courts of the Kherson Region, who had presented her resignation to Parliament. One of the MPs made a speech to the effect that Judge O. had resigned to avoid responsibility for bribery.<\/p>\n 14. The newspaper\u2019s reproduction of the transcript was followed by the following conclusion:<\/p>\n \u201cAs you can see, dear readers, representatives of the Kherson justice system have \u2018distinguished themselves\u2019 twice. It was not only Mr I. who disgraced himself in front of the entire country [A9] but also his subordinate from one of the district courts.\u201d<\/p>\n 15. Mr I.\u2019s photograph was displayed on the first page of the article, covering approximately one sixth of the page. He was shown in formal attire, with a neutral facial expression, apparently sitting at a desk. Under the photograph the following caption appeared:<\/p>\n \u201cI will recompense them according to their deeds (Old Testament)[1]<\/p>\n Mr I. is shown in the photo\u201d<\/p>\n 16. In the same issue of the newspaper another photograph of I. was published with the caption \u201cParliament so far has not given a \u2018life sentence\u2019 to the president of the Kherson Court of Appeal\u201d.The copy of the article provided to the Court by the applicant company does not contain that second photograph.<\/p>\n 17. Within the next two weeks other newspapers published at least three articles commenting in critical terms on the Parliamentary session dedicated to I.\u2019s appointment and his activities in general.<\/p>\n 2. Domestic proceedings<\/em><\/p>\n 18. I. brought a claim in the Kherson Suvorovsky District Court against the applicant company seeking retraction of statements A1-A9 and compensation for non-pecuniary damage. He argued that the publication in the newspaper, which had a circulation of 62,500, had negatively influenced his professional reputation and public opinion of the judicial system at large, triggering actions aimed at putting pressure on the courts, namely numerous demonstrations outside the region\u2019s courthouses.<\/p>\n 19. The case was tried by Judge S. (trial judge).<\/p>\n 20. According to the applicant company, in the course of the trial it produced, by way of proof of the factual grounds for the impugned statements, twenty\u2011five articles published in the local newspapers from 1997 to 2006.<\/p>\n 21. On 16 April 2006 the applicant company lodged an application with the Supreme Court urging it to reassign the case, in view of the plaintiff\u2019s position, to a court in a different region (see paragraph 42 below for the relevant domestic legal provision). It argued, in particular, that the trial judge had previously examined a claim lodged by I.\u2019s son, himself a vice presidentof a district court in Kherson, and had allegedly breached the law in those proceedings. It also argued that, as a long-term president of the Kherson Regional Court of Appeal, I. had supervisory functions in respect of all judges in the region.<\/p>\n 22. On 28 April 2006 the applicant company asked the first-instance court to postpone hearings in the case until the Supreme Court had ruledon its reassignment application. I. objected. The court decided not to postpone the hearings.<\/p>\n 23. On 19 May 2006 the applicant company asked the court to suspend proceedings in the case under Article 201 of the Code of Civil Procedure (see paragraph 43below) pending examination by the Supreme Court of its application for case reassignment. The court refused. The applicant companychallenged the trial judgeon the grounds that he had rejected its request to suspend the proceedings. The judge rejected the challenge.<\/p>\n 24. On 22 May 2006 the first-instance court delivered its judgment allowing the claim.<\/p>\n (i) The court declared: (a) the photographs and captions to them and statements A1-A5 and A7-A9 baseless, insulting and damaging to I.\u2019s reputation, and (b) statement A6 untrue and damaging to I.\u2019s reputation.<\/p>\n (ii) The court ordered the applicant company to publish its judgment and awarded I. 100,000 Ukrainian hryvnyas (UAH) in compensation for non\u2011pecuniary damage and UAH 5,000 in court fees (about 14,860 euros and 740 euros (EUR) respectively at the time).<\/p>\n (iii) By way of reasoning the court stated that statements A1-A5 and A7\u2011A9 could not be protected as value judgments, since they were deliberately insulting. Article 10 \u00a7 2 of the Convention permitted restrictions on freedom of expression for the protection of the reputation of others. Neither the transcript of Parliament\u2019s plenary sitting nor other documents before the court provided a factual basis for those statements.<\/p>\n (iv) The defendant had failed to prove the truth of the factual statement A6 or to point to the source of that information.<\/p>\n (v) As to the photographs, the court considered that the applicant company had failed to prove that I.\u2019s photographs had been taken either with his consent or at a public event. While it was established that the photograph with the biblical quote (see paragraph 15 above) had been taken at an official meeting on 5 May 2005, it presented only I. and not the event in general and so was unrelated to the event. The defendant had thus exercised the choice of which fragments of the photographs to publish, selecting those where only the plaintiff was shown \u201cin a certain light\u201d. Combined with the captions added, this demonstrated that publication of the photographs wasintended as an attack on the plaintiff\u2019s honour and dignity.<\/p>\n (vi) The totality of the circumstances showed, for the court, that the applicant company\u2019s purpose in publishing the impugned statements and photographs was deliberately to damage I.\u2019s reputation.<\/p>\n 25. On 23 May 2006 the Supreme Court, apparently unaware that the examination of the case at first instance had already been completed, reassigned the case to a district court in the Mykolaiv Region on the grounds that \u201ca judge was a party to the proceedings\u201d.<\/p>\n 26. The applicant company appealed against the first-instance court\u2019s judgment arguing in particular that the court had not been impartial because it had refused, without giving particular reasons, to suspend proceedings while the reassignment application had been pending before the Supreme Court. The applicant company also argued that the first-instance court\u2019s judgment was contrary to Article 10 of the Convention.<\/p>\n 27. As to statement A6, the applicant company alleged that I.\u2019s daughter-in-law (the wife of his son) was the daughter of D., who at the time was the President of the Civil Division of the Supreme Court. The plaintiff was not contesting that fact. The use of the term \u201cperhaps\u201d in statement A6 showed that it had been meant to communicate that the author was wondering whether a relative\u2019s presence on the Supreme Court was protecting I. rather than being a positive affirmation that this was indeed the case. It was thus a value judgment and was true.<\/p>\n 28. On 5 July 2006 the Supreme Court reassigned the case, at I.\u2019s request, to the Zaporizhzhya Regional Court of Appeal.<\/p>\n 29. On 18 August 2006 the Zaporizhzhya Regional Court of Appeal varied the judgment of the first-instance court and reaffirmed the essential part of its reasoning:<\/p>\n (i) The Court of Appeal reduced the amounts awarded to UAH 20,000 for non-pecuniary damage and UAH\u00a01,000 for court fees (about EUR 2,970 and 148 respectively at the time), having regard to the applicant company\u2019s financial situation, and upheld the remainder of the first-instance court\u2019s judgment.<\/p>\n (ii) By way of reasoning, the Court of Appeal stated that, according to the case-law of the European Court of Human Rights, the fact that the subjects of published information had public status made such persons more open to criticism but did not deprive them of the right to sue to defend their reputation.<\/p>\n (iii) The Court of Appeal found unconvincing the applicant company\u2019s argument that it had pursued the legitimate aim of informing the public, as opposed to damaging I.\u2019s reputation as President of the Regional Court. Given that the impugned statements and captions to the photographs had been presented as a narrative about certain circumstances (\u0440\u043e\u0437\u043f\u043e\u0432\u0456\u0434\u044c \u043f\u0440\u043e \u043f\u0435\u0432\u043d\u0456 \u043e\u0431\u0441\u0442\u0430\u0432\u0438\u043d\u0438), the first-instance court\u2019s conclusion that they could not be seen as value judgments, but rather as insults,had been justified. An insult was a statement made not with the purpose of communicating information but with the purpose of insulting a person.<\/p>\n 30. In its appeal on points of law, the applicant company reiterated essentially the same arguments as in its previous appeal (see paragraph 27 above). As to statement A6, the applicant company added that a letter from the chairman of the Council of Judges of Ukraine dated 8 April 2005 and quoted in the impugned article (see paragraph 12 above) was in the file. The letter was addressed to a certain Mr B. and contained a detailed response to his complaints against I. The Council stated, in particular, that the fact that D. was the father of I.\u2019s daughter-in-law did not mean that I. had abused his position.<\/p>\n 31. On 10 March 2008 the Odessa Regional Court of Appeal, acting as the court of cassation, amended the lower courts\u2019 decisions by rejecting I.\u2019s claim for damages, retaining only the award of court fees(see paragraph\u00a029\u00a0(i) above). It held that the very fact of the decisions in his favour constituted sufficient redress for I. It upheld the remainder of the lower courts\u2019 decisions. It held, in particular, that the trial judge\u2019s failure to suspend proceedings pending examination of the reassignment application by the Supreme Court did not constitute grounds for quashing its judgment. The court held that the aim of the impugned phrases had been solely to humiliate and disparage a representative of the judiciary and the phrases had made no contribution to the resolution of the problems in the administration of justice. Criticism of a judge was possible in the context of a public debate on problems related to inefficiencies in the judicial system or to a judge\u2019s lack of independence or impartiality. However, the impugned article had not discussed those issues.<\/p>\n 32. As concerns the matter of impartiality of the first-instance court\u2019s judge, the Court of Appel made no comment. The court of cassation stated that the fact that that judge had refused to suspend the proceedings and had rejected the challenge against himself (seeparagraph 23 above) did not constitute grounds for quashing the lower courts\u2019 decisions.<\/p>\n C. Article B \u2013 application no. 41214\/08<\/strong><\/p>\n 1. Publication<\/em><\/p>\n 33. The article, published in the issue of the newspaper dated 11-18 May 2006, was authored by Ms K., who was at the time the director of the applicant company, and entitled \u201cEx-court president is \u2018burying\u2019 Lady Justice under his claims (\u042d\u043a\u0441-\u043f\u0440\u0435\u0434\u0441\u0435\u0434\u0430\u0442\u0435\u043b\u044c \u0441\u0443\u0434\u0430 \u00ab\u0437\u0430\u0432\u0430\u043b\u0438\u043b\u00bb \u0424\u0435\u043c\u0438\u0434\u0443 \u0438\u0441\u043a\u0430\u043c\u0438)\u201d. Its relevant parts read:<\/p>\n \u201cClaims raining down on the independent media of the Kherson Region from Mr I., who until recently used to be President of the Regional Court of Appeal, cannot be called anything other than a trend. Newspapers which take a consistent line in favour of a just and honest judicial system are being targeted.<\/p>\n It seems that I. \u2018has had enough\u2019 of a clear and consistent position of Mr S., the head of the Kherson City committee of the Union of Retired Officers of the Armed Forces and Law Enforcement.<\/p>\n Following a defamation claim against theGrivna newspaper, Mr I. also sued theVIK newspaper which had published S.\u2019s open letter to the [regional governor]. S. had asked the governor to state his position concerning the events which became a topic for examination in the Parliament and are constantly in the newspapers. In his letter the author appealed to the government\u2019s representative in the hope that he would not remain an impartial observer but could influence the situation as regards justice in the region. [B1] Claims of retired servicemen seeking increases in their pensions to which they are entitled by law have been pending before the courts of the region for two years. While in other regions pensioners get the money to which they are entitled by law, in our region only several dozen pensioners managed to get their money. Why do the courts work this way in our region? [B2]…<\/p>\n Remarkably, this publication in the VIK newspaper was not the end of contacts between S. and I. Literally days after the publication of that issue, the letter writer and the judge had a conversation, at the request of the latter. S. says that a dressing-down is the only term that can describe the tone of the \u2018conversation\u2019. After this meeting the officer\u2019s hope of establishing a dialogue with the judge and of clarifying the situation collapsed. This was the subject of a new open letter he addressed directly to Mr I. And then something totally unexpected for the retired submarine officer happened: he was attacked at night by strangers, received a serious blow to the head, obliging him to be hospitalised. A coincidence? The relevant authorities could answer this question but they initially refused to register S.\u2019s complaint about the attack. He has not been informed about the results of the investigation. [B3]<\/p>\n This is the short story of the [contacts between S. and I.] The final touch to the story will be a court judgment on the defamation claim. The claim will be examined by the same Judge St. of the Suvorovsky District Court who surprisingly gets to examine I.\u2019s claims. In contrast to the case against our newspaper, where I. is seeking damages for himself, in the case against VIK his claims are entirely selfless. He is asking that damages be paid to [an orphanage]. Charity is of course a laudable enterprise, but the editorial boards of both Grivna and VIK understand that the point of the operation is not to get some money (\u0437\u0430\u0442\u0435\u044f\u043d\u043e \u0432\u0441\u0435 \u0434\u0430\u043b\u0435\u043a\u043e \u043d\u0435 \u0438\u0437-\u0437\u0430 \u0436\u0435\u043b\u0430\u043d\u0438\u044f \u043f\u043e\u043b\u0443\u0447\u0438\u0442\u044c \u0434\u0435\u043d\u044c\u0433\u0438). [B4]<\/p>\n Most likely, court decisions… in his favour would come in handy for I. when Parliament again examines the question of his lifetime appointment. Claims granted at first instance and on appeal may serve as proof for the argument that journalists\u2019 unjustified attacks (this is how Lady Justice\u2019s servants call our critical publications) are made up and baseless. [B5]Especially because Judge St. does not take into account a seemingly logical idea… that if one of the parties is a court or a judge then the case should be examined by a higher court… [B6]\u201d<\/p>\n 2. Domestic proceedings<\/em><\/p>\n 34. I. brought a claim against the applicant company and K., seeking retraction of statements B1-B6 and compensation for non-pecuniary damage. As regards, in particular, statement B3, the plaintiff submitted that it was based entirely on S.\u2019s account of the events and that the author of the article had made no attempt to obtain the version of the Kherson Regional Court\u2019s staff. As far as the attack on S. was concerned, the story was presented in such a way as to generate a \u201ccheap sensation\u201d by creating the impression that I. was somehow implicated in the attack.<\/p>\n 35. According to the applicant company, in the course of the trial it produced as proof of the factual grounds for the impugned statements twenty-four articles published in the local newspapers from 1997 to 2006.<\/p>\n 36. The applicant company also produced the letter from S. to the regional governor, reference to which was made in statements B1 and B2. In the letter, dated 14 February 2006, S. stated that I. possessed property which could not be explained by his lawful income and that the Parliament had refused to appoint I. on a permanent basis. The region \u201cwas one of the last in Ukraine in terms of delivering lawful, just decisions in cases of retired military officers who sought to defend their right to a decent pension\u201d in the courts. S. asked the governor to explain why I. was still allowed to remain in the position of the President of the Regional Court and why the governor did not intervene.<\/p>\n 37. On 19 August 2006 the Zaporizhzhya Shevchenkivsky District Court allowed the claim in part, ordering the author of the article to apologise by retracting statements B1-B5 and the applicant company to publish the retraction in the newspaper. The court awarded UAH 50,000 (about EUR\u00a07,450 at the time) in compensation for non-pecuniary damage, from the defendants jointly and severally, to be paid to an orphanage. The following elements of the District Court\u2019s reasoning are worthy of note.<\/p>\n (i) Referring to Article 10 of the Convention the court stated that the public status of the subjects of publications did not deprive them of the right to protection of their reputation. Even though the impugned statements constituted value judgments, they were insulting.<\/p>\n (ii) According to the case-law of the European Court of Human Rights the fact that subjects of the published information had public status made such persons more open to criticism but did not deprive them of the right to sue to defend their reputation.<\/p>\n (iii) The impugned statements were insulting. The defendants had failed to provide evidence of grounds for such statements and the evidence they did provide did not contain incontrovertible facts which would allow assessment of the person of the plaintiff and the work of the court over which he presided (\u043d\u0435 \u043c\u0456\u0441\u0442\u044f\u0442\u044c \u0431\u0435\u0437\u0437\u0430\u043f\u0435\u0440\u0435\u0447\u043d\u0438\u0445 \u0444\u0430\u043a\u0442\u0456\u0432, \u044f\u043a\u0456 \u0431 \u0434\u043e\u0437\u0432\u043e\u043b\u0438\u043b\u0438 \u043e\u0446\u0456\u043d\u0438\u0442\u0438 \u043e\u0441\u043e\u0431\u0443 \u0456 \u0434\u0456\u044f\u043b\u044c\u043d\u0456\u0441\u0442\u044c \u0441\u0443\u0434\u0443).<\/p>\n (iv) Referring to Article 5 of the Information Act setting out objectivity as one of the principles of information relations (see paragraph 49below), the court said that the implementation of that principle in respect of value judgments meant that they had to have a basis. Freedom of the press and protection offered to elements of provocation in journalistic expression could not justify baseless criticism with insulting elements, as had occurred in the case.<\/p>\n (v) That position was in accordance with the case-law of the European Court of Human Rights. In Lingens v. Austria (8 July 1986, \u00a7 46, Series A no.\u00a0103) it had stressed the need to distinguish between facts and value judgments, the truth of which was not susceptible of proof. At the same time the District Court stressed the following quote from the same paragraph ofLingens: \u201cThe Court notes in this connection that the facts on which Mr.\u00a0Lingens founded his value-judgment were undisputed, as was also his good faith.\u201d<\/p>\n (vi) The District Court went on to note that the defendants had failed to provide proof that the facts which the journalist evaluated in the impugned article were undisputed\/incontrovertible (\u0434\u043e\u043a\u0430\u0437\u0456\u0432 \u043d\u0435\u0437\u0430\u043f\u0435\u0440\u0435\u0447\u043d\u043e\u0441\u0442\u0456 \u043e\u0446\u0456\u043d\u0435\u043d\u0438\u0445 \u0436\u0443\u0440\u043d\u0430\u043b\u0456\u0441\u0442\u043e\u043c \u0444\u0430\u043a\u0442\u0456\u0432 \u0443 \u0434\u0430\u043d\u0456\u0439 \u0441\u043f\u0440\u0430\u0432\u0456 \u0432\u0456\u0434\u043f\u043e\u0432\u0456\u0434\u0430\u0447\u0456 \u0441\u0443\u0434\u0443 \u043d\u0435 \u043d\u0430\u0434\u0430\u043b\u0438)[2] and, therefore, the court did not consider that they had acted in good faith in accordance with Article 5 of the Information Act. The court concluded that the defendants\u2019 intention was not to inform the public but rather to spread negative information about the plaintiff.<\/p>\n (vii) The court refused to declare statement B6 defamatory.<\/p>\n 38. On 14 November 2006 the Zaporizhzhya Regional Court of Appeal upheld the judgment but modified it to the effect that damages were to be paid to I. and not the orphanage, since domestic law did not allow for the possibility of directing the funds awarded to a plaintiff to a third party charitable institution. The Court of Appeal agreed with the lower court\u2019s assessment of the amount of damages, account being taken of the plaintiff\u2019s moral suffering and disruption of his social ties, including as a public official. The first-instance court had not established that the journalist had acted in good faith and checked the information she disseminated and, accordingly, no exemption from liability under the State Support of Media Act applied (see paragraph 51below). The Court of Appeal stated that an insult was a statement which was uttered not with the aim of disseminating information but with the aim of humiliating a person.<\/p>\n 39. On 21 December 2007 the Odessa Regional Court of Appeal, acting as the court of cassation, upheld the lower courts\u2019 decisions. It stated that the Court of Appeal\u2019s decision was in accordance with the substantive and procedural law and there were no legal grounds to quash it.<\/p>\n D. Subsequent events<\/strong><\/p>\n 40. On 2 November 2006 I. was appointed to the position of judge on a permanent basis and continued to hold the position of President of the Kherson Regional Court of Appeal until 2012.<\/p>\n II. RELEVANT DOMESTIC LAW<\/p>\n A. Code of Civil Procedure of 2004<\/strong><\/p>\n 41. The Code was entirely restated by the Law of 3 October 2017, with effect from 15 December 2017. From that date the content and the numbering of various provisions changed. The provisions below are presented as they stood at the time when the domestic courts examined the applicant company\u2019s cases.<\/p>\n 42. Article 108 provided that territorial jurisdiction over a case to which a judge or a court was a party would be determined by a higher court.<\/p>\n 43. Articles 201 provided that the court had tosuspend (\u0437\u0443\u043f\u0438\u043d\u044f\u0454) proceedings in an exhaustive list of situations, notably where it was not possible to examine the case until resolution of another case which was being examined in constitutional, administrative, civil, commercial or criminal proceedings.<\/p>\n 44. Article 303 of the Code provided that the court of appeal was bound by the grounds of appeal unless they omitted to mention a flagrant illegality. Paragraph 2 of the article allowed the court of appeal to examine the evidence if the first-instance court had unjustifiably refused to examine it or had examined it in breach of established procedure,the court of appealcould also examine new evidence if a good reason was shown for failure to produce it before the first-instance court.Article 309 provided that the court of appeal could quash the first-instance court\u2019s judgment and deliver its own judgment or could amend the lower court\u2019s judgment where the first-instance court had committed an error of fact or law.<\/p>\n 45. Article 311 of the Code provided that a court of appeal had to quash a first-instance judgment and remit the case for re-examination if the judgment had been delivered by a court without jurisdiction or where the composition of the court was unlawful.<\/p>\n 46. Articles 338 and 341 of the Code defined the powers of courts of cassation. They provided that a court of cassation could modify a lower court\u2019s decision or deliver its own decision on the merits of the case where it established that the lower court had committed an error of substantive law. The court of cassation could quash a lower court\u2019s decision and remit the case for re-examination in case of a number of serious procedural breaches, the list of which was exhaustive and related mainly to the composition and jurisdiction of the lower court.<\/p>\n B. Civil Code of 2003<\/strong><\/p>\n 47. Article 277 provides that an individual whose non-pecuniary rights have been infringed as a result of the dissemination of untrue information has the right to reply and obtain a retraction. Article 297 provides that an individual has the right to sue to defend his or her dignity and honour. Article 280 provides that an individual whose non-pecuniary rights have been infringed is entitled to damages.<\/p>\n 48. Article 307 \u00a7 1 provides that an individual can be photographed only with his or her consent. Consent is presumed if the photograph is taken openly in the street or at a public event.<\/p>\n C. Information Act of 1992<\/strong><\/p>\n 49. Article 5 of the Act, as worded at the relevant time, declared that objectivity and credibility of information constituted one of the principles of legal relations in the field of information.<\/p>\n 50. Article 47-1 of the Act provides that no one may be held liable for making value judgments. It defines value judgments as follows:<\/p>\n \u201cValue judgments, excluding insults and libel, are statements which do not contain factual data, in particular, criticism, evaluation of actions, and also statements which cannot be said to contain factual data because of the way they are worded, in particular, [by means of] hyperbole, allegory, or satire. Value judgments are not subject to retraction and their truthfulness need not be proven …\u201d<\/p>\n D. State Support of Mass Media Act of 1997<\/strong><\/p>\n 51. Article 17 provides that journalists andmass media professionalsare exempted from liability for the dissemination of untrue information if the court establishes that the journalist has acted in good faith and has checked the information.<\/p>\n E. Rules Concerning the Status of Judges<\/strong><\/p>\n 52. At the relevant time Article 128 of the Constitution of Ukraine provided that following initial appointment by the President for a five-year term, judges could then be re-appointed by Parliament until they reached sixty-five years of age (\u201cpermanent appointment\u201d). The Constitution came into force in 1996. Prior to that, under the 1992 Status of Judges Act (Section9 \u00a7\u00a7 2 and 3), regional court judges were appointed by Parliament for ten-year terms.<\/p>\n 53. Section28 \u00a7 1 of the 2002 Judicial Organisation Act provided that presidents of courts of appeal had a number of representative functions and functions in the organisation of the court\u2019s work. As far as lower courts were concerned, the president of the court of appeal had to collect and analyse courts\u2019 statistics and practice and, for this purpose, had the power to request files from the lower courts.The presidents also recommended candidates for the positions of president and vice-president of district courts.<\/p>\n THE LAW<\/strong><\/p>\n I. JOINDER OF THE APPLICATIONS<\/p>\n 54. The Court considers that, pursuant to Rule 42 \u00a7 1 of the Rules of Court, the applications should be joined, given their common factual and legal background.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 55. The applicant company complained that the trialjudge of the Kherson Suvorovsky District Court, who had examined the case concerning Article A at first instance,was not impartial and that that courthad not been a \u201ctribunal established by law\u201d within the meaning of Article 6\u00a0\u00a7 1 of the Convention, of which the relevant part reads:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by an independent and impartial tribunal established by law.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 1. \u201cTribunal established by law\u201d<\/em><\/p>\n 56. The applicant company submitted that the reassignment of its case by the Supreme Court had automatically and retrospectively removed jurisdiction from the court which had in fact examined the case prior to the reassignment, with the result that the appeal court had been required to quash the judgment and remit the case.<\/p>\n 57. The Government submitted that the higher domestic courts had rejected the applicant company\u2019s arguments in that respect and it was primarily for them to interpret and apply domestic law.<\/p>\n 58. The Court notes that the applicant company\u2019s reading is not evident from the domestic legal provision invoked by it (see paragraph 45 above) and it was implicitly rejected by the higher domestic courts. Moreover, the applicant company has failed to present any examples from domestic case-law which would support its interpretation (see, mutatis mutandis, Med\u017elis Islamske Zajednice Br\u010dko and Others v. Bosnia and Herzegovina [GC], no.\u00a017224\/11, \u00a7 71, 27 June 2017). Therefore, nothing indicates that the domestic courts\u2019 interpretation of the domestic law was arbitrary or manifestly unreasonable. Accordingly, this complaint should be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n
\nCASE OF EDITORIAL BOARD OF GRIVNANEWSPAPER v.\u00a0UKRAINE<\/strong>
\n(Applications nos. 41214\/08 and 49440\/08)<\/p>\n
\nSTRASBOURG
\n16 April 2019<\/p>\n
\nFaris Vehabovi\u0107,
\nEgidijus K\u016bris,
\nCarlo Ranzoni,
\nMarko Bo\u0161njak,
\nP\u00e9ter Paczolay, judges,
\nSergiy Goncharenko, ad hoc judge,
\nand Marialena Tsirli, Section Registrar,<\/p>\n