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 “the newspaper”).
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.’s full name: his first name, surname and/or patronymic in various combinations.
8.  In January 2006 the plenary Verkhovna Rada of Ukraine (hereinafter “the Parliament”) was to examine the question of I.’s appointment to the position of judge on a permanent basis, until retirement age. The matter was to be examined because I.’s previous ten-year appointment was expiring (see the relevant constitutional and legislative rules concerning the appointment of judges at paragraph 52 below).
9.  Prior to the Parliament’s session, on 5 January 2006 another regional newspaper, Vgoru, published an article alerting the readers that the matter of I.’s permanent appointment would be examined by Parliament and urging readers to send comments on I.’s candidature to the relevant parliamentary committee.
10.  On 12 January 2006 Parliament examined the question of I.’s permanent appointment. Owing to concerns raised by some Members of Parliament about I.’s candidature (see the summary of the transcript of the debate at paragraph 13 below), Parliament decided to adjourn the examination of the question.
11.  An article, published in the issue of the newspaper dated 19‑26 January 2006, was dedicated to the above event and entitled “Purgatory for Judges” (Чистилище для судей). It spread over two full pages. The first page of the article contained the following text:
“We 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 ‘democracy’. However, the fact that the MPs have ‘rejected the advances’ of the President of the Kherson Court of Appeal, Mr I. (получил от народных депутатов «гарбуза») [A1] speaks volumes.
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 ‘show’ [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.
We give you this in lieu of a prologue: ‘... In his eight years and counting at the head of the Regional Court I. has found himself dozens of loyal people – lawyers, judges, and important businessmen – for whose personal and business interests he has successfully lobbied through favourable judicial decisions [A3] (обзавелся десятками преданных людей... чей бизнес и личные интересы успешно лоббировал с помощью нужных решений в судах)...
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...’
This document arrived in our offices last autumn. It was addressed to a very high‑ranking 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:
‘Using 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-à-vis his... creditors.’
They go on to describe I.’s ‘tricks’ (проделки) on two pages! [A5] And here is the response of the Supreme Court’s 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].
So I. has been ‘duly punished’ 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’s 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...
...
And now I.’s 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 ‘has made himself famous’ nationwide (‘прославился’ на всю страну). [A7] [The article then mentioned Judge O., whose resignation was discussed at the same plenary sitting of Parliament as I.’s appointment] But Mr I. is a ‘hard nut to crack’ and is dreaming of keeping his post no matter what (‘крепкий орешек’ и, несмотря ни на что, он мечтает сохранить пост). [A8]”
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.’s son.
13.  Almost the entire second page of the article was taken up by the verbatim reproduction of the transcript of Parliament’s plenary sitting of 12 January 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’s 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.’s 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.
14.  The newspaper’s reproduction of the transcript was followed by the following conclusion:
“As you can see, dear readers, representatives of the Kherson justice system have ‘distinguished themselves’ 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.”
15.  Mr I.’s 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:
“I will recompense them according to their deeds (Old Testament)[1]
Mr I. is shown in the photo”
16.  In the same issue of the newspaper another photograph of I. was published with the caption “Parliament so far has not given a ‘life sentence’ to the president of the Kherson Court of Appeal”. The copy of the article provided to the Court by the applicant company does not contain that second photograph.
17.  Within the next two weeks other newspapers published at least three articles commenting in critical terms on the Parliamentary session dedicated to I.’s appointment and his activities in general.
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’s courthouses.
19.  The case was tried by Judge S. (trial judge).
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‑five articles published in the local newspapers from 1997 to 2006.
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’s 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.’s son, himself a vice president of 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.
22.  On 28 April 2006 the applicant company asked the first-instance court to postpone hearings in the case until the Supreme Court had ruled on its reassignment application. I. objected. The court decided not to postpone the hearings.
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 43 below) pending examination by the Supreme Court of its application for case reassignment. The court refused. The applicant company challenged the trial judge on the grounds that he had rejected its request to suspend the proceedings. The judge rejected the challenge.
24.  On 22 May 2006 the first-instance court delivered its judgment allowing the claim.
(i) The court declared: (a) the photographs and captions to them and statements A1-A5 and A7-A9 baseless, insulting and damaging to I.’s reputation, and (b) statement A6 untrue and damaging to I.’s reputation.
(ii) The court ordered the applicant company to publish its judgment and awarded I. 100,000 Ukrainian hryvnyas (UAH) in compensation for non‑pecuniary damage and UAH 5,000 in court fees (about 14,860 euros and 740 euros (EUR) respectively at the time).
(iii) By way of reasoning the court stated that statements A1-A5 and A7‑A9 could not be protected as value judgments, since they were deliberately insulting. Article 10 § 2 of the Convention permitted restrictions on freedom of expression for the protection of the reputation of others. Neither the transcript of Parliament’s plenary sitting nor other documents before the court provided a factual basis for those statements.
(iv) The defendant had failed to prove the truth of the factual statement A6 or to point to the source of that information.
(v) As to the photographs, the court considered that the applicant company had failed to prove that I.’s 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 “in a certain light”. Combined with the captions added, this demonstrated that publication of the photographs was intended as an attack on the plaintiff’s honour and dignity.
(vi) The totality of the circumstances showed, for the court, that the applicant company’s purpose in publishing the impugned statements and photographs was deliberately to damage I.’s reputation.
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 “a judge was a party to the proceedings”.
26.  The applicant company appealed against the first-instance court’s 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’s judgment was contrary to Article 10 of the Convention.
27.  As to statement A6, the applicant company alleged that I.’s 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 “perhaps” in statement A6 showed that it had been meant to communicate that the author was wondering whether a relative’s 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.
28.  On 5 July 2006 the Supreme Court reassigned the case, at I.’s request, to the Zaporizhzhya Regional Court of Appeal.
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:
(i) The Court of Appeal reduced the amounts awarded to UAH 20,000 for non-pecuniary damage and UAH 1,000 for court fees (about EUR 2,970 and 148 respectively at the time), having regard to the applicant company’s financial situation, and upheld the remainder of the first-instance court’s judgment.
(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.
(iii) The Court of Appeal found unconvincing the applicant company’s argument that it had pursued the legitimate aim of informing the public, as opposed to damaging I.’s 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 (розповідь про певні обставини), the first-instance court’s 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.
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.’s daughter-in-law did not mean that I. had abused his position.
31.  On 10 March 2008 the Odessa Regional Court of Appeal, acting as the court of cassation, amended the lower courts’ decisions by rejecting I.’s claim for damages, retaining only the award of court fees (see paragraph 29 (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’ decisions. It held, in particular, that the trial judge’s 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’s lack of independence or impartiality. However, the impugned article had not discussed those issues.
32.  As concerns the matter of impartiality of the first-instance court’s 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 (see paragraph 23 above) did not constitute grounds for quashing the lower courts’ decisions.
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 “Ex-court president is ‘burying’ Lady Justice under his claims (Экс-председатель суда «завалил» Фемиду исками)”. Its relevant parts read:
“Claims 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.
It seems that I. ‘has had enough’ 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.
Following a defamation claim against the Grivna newspaper, Mr I. also sued the VIK newspaper which had published S.’s 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’s 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] ...
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 ‘conversation’. After this meeting the officer’s 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.’s complaint about the attack. He has not been informed about the results of the investigation. [B3]
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.’s 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 (затеяно все далеко не из-за желания получить деньги). [B4]
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’ unjustified attacks (this is how Lady Justice’s 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]”
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.’s account of the events and that the author of the article had made no attempt to obtain the version of the Kherson Regional Court’s staff. As far as the attack on S. was concerned, the story was presented in such a way as to generate a “cheap sensation” by creating the impression that I. was somehow implicated in the attack.
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.
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 “was 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” 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.
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 7,450 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’s reasoning are worthy of note.
(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.
(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.
(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 (не містять беззаперечних фактів, які б дозволили оцінити особу і діяльність суду).
(iv) Referring to Article 5 of the Information Act setting out objectivity as one of the principles of information relations (see paragraph 49 below), 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.
(v) That position was in accordance with the case-law of the European Court of Human Rights. In Lingens v. Austria (8 July 1986, § 46, Series A no. 103) 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 of Lingens: “The Court notes in this connection that the facts on which Mr. Lingens founded his value-judgment were undisputed, as was also his good faith.”
(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 (доказів незаперечності оцінених журналістом фактів у даній справі відповідачі суду не надали)[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’ intention was not to inform the public but rather to spread negative information about the plaintiff.
(vii) The court refused to declare statement B6 defamatory.
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’s assessment of the amount of damages, account being taken of the plaintiff’s 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 51 below). 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.
39.  On 21 December 2007 the Odessa Regional Court of Appeal, acting as the court of cassation, upheld the lower courts’ decisions. It stated that the Court of Appeal’s decision was in accordance with the substantive and procedural law and there were no legal grounds to quash it.
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.