FIFTH SECTION      CASE OF INSTYTUT EKONOMICHNYKH REFORM, TOVv. UKRAINE (Application no. 61561/08)        JUDGMENT  STRASBOURG 2 June 2016  FINAL 17/10/2016 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Instytut Ekonomichnykh Reform, TOV v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Ganna Yudkivska, Khanlar Hajiyev, André Potocki, Yonko Grozev, Síofra O’Leary, Mārtiņš Mits, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 26 April 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 61561/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Instytut Ekonomichnykh Reform TOV (“the applicant company”), on 8 December 2008.2. The applicant company was represented by Ms G.G. Sovenko, a lawyer practising in Zhovti Vody. The Ukrainian Government (“the Government”) were represented most recently by their Acting Agent, Ms O. Davydchuk, of the Ministry of Justice.3. The applicant company alleged that its right to freedom of expression had been breached.4. On 2 March 2011 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASEA. Background to the case5. The applicant company, Instytut Ekonomichnykh Reform (a limited liability company), is the editorial body of the Evening News newspaper (Вечерние Вести), registered in Ukraine. According to the applicant company, at the material time the newspaper was one of the top nationwide dailies in Ukraine by circulation and was closely associated with Ms Yuliya Tymoshenko, a political leader.6. In the 1990s Ms Ganna German worked as a newspaper journalist in Lviv. In the early 2000s she headed the Kyiv bureau of Radio Free Europe/Radio Liberty. In 2004 she became a spokesperson for the then-Prime Minister, Victor Yanukovych, a move which was widely perceived as constituting a significant change of sides in the political debate on Ms German’s part. In May 2006 she was elected as a member of parliament on the list of the Party of Regions, led by Mr Yanukovych. At the material time she frequently presented her party’s and Mr Yanukovych’s views on various television and radio programmes and debates.7. On 2 April 2007 the President of Ukraine issued a decree dissolving Parliament. This decree led to an acute constitutional crisis, with the parliamentary majority, grouped around the Party of Regions, initially refusing to comply with the decree. Fresh parliamentary elections were originally scheduled for 27 May 2007 but were postponed; they eventually took place on 30 September 2007. Political parties led by Mr Yanukovych and Ms Tymoshenko won the largest numbers of votes.B. Impugned article8. On 21 May 2007 Evening News published an article entitled “How I became a victim of demagogues” (Как я стал жертвой демагогов) written by Mr I. Tkalenko (“the author”).9. The relevant extracts from the article read as follows:“On Friday evening Yuliya Tymoshenko almost lost one of her fans ... I am embarrassed to admit that I almost went over to Yanukovych’s side ...And it’s Ganna German’s fault. She was talking live on BBC radio and she almost persuaded me. She said that they had eleven million supporters in Ukraine and that the party numbered one million members. I was dumbfounded!And of course I was impressed by her eloquence. How beautifully she speaks, what a well-trained voice and proper intonation she has. She uses not only words but intonation, communicating non-verbally as well ... Of course, she is such a professional ...I thought that after her speech another five hundred thousand would join the Party of Regions. I used to think that one could easily debate with Ganna German. I put myself in Ganna German’s position and it seemed that she must be feeling very uncomfortable.I thoughtlessly believed that the question “Ms Ganna, what are you doing in this gang?” should make her blush and lower her gaze. She, a nationalist, should be ashamed to belong to this group of Ukraine haters (украиноненавистническую компанию).Ms Ganna dropped hints about not being a rich person, which means that money was evidently not the least motivation for her decision to work for Yanukovych. And although she does it for money, she does it with such devoted artistry that it made me want to cry out, contrary to Stanislavsky: “I believe you! Ms Ganna, I believe you!”I did almost believe her.As a journalist and someone who knows Ganna personally, and someone who has even learned from her (I learned from her how not to write), I have constantly tried to put myself in her position.I certainly understand, Ms Ganna, that it’s about the money ...But it can’t be that kind of money! A thousand, really? A thousand bucks? Or more?I think any Ukrainian journalist would sell himself to Yanukovych for that much money – for a thousand bucks. I don’t even know if I myself would be able to resist. What would I say to my wife, to my friends? I would say: “You don’t know Yanukovych. I know Victor Fyodorovich personally. I have talked with him a lot. He is a great guy ...”What if I were given more than a thousand bucks a month? And [if I had an offer] to become a member of parliament, as in Ganna German’s case? That is, for a flat in Kyiv? I believe that all journalists dream of selling themselves for a flat in Kyiv, even those who already have one. One does not have to do anything complicated for this. One just has to say, with beautiful diction and intonation, that Yanukovych is a lost sheep that has finally found the right path and constantly thanks God for it ......I could also say those things. For a flat in Kyiv. And many other simple country guys could say those things for a flat in Kyiv. The problem is, however, that Yanukovich wouldn’t give just anyone a flat in Kyiv. We don’t have many stars, like Ganna German, [whose worth is] that of a flat in Kyiv (Мало у нас таких звезд, как Анна Герман, которые стоят, как квартира в Киеве). By the way, for the cost of an MP’s flat one could maintain the editorial staff of a daily newspaper for five to ten years (depending on what kind of flat it is). And each and every one of them would write about what criminals and falsifiers the members of the Orange Party are and what a wise, honest and principled man our Victor Fyodorovich is....I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell myself like that! That is of course the highest point in a journalist’s career. Not even for a flat. At least ten thousand bucks, but all in one go. Alright, for five thousand. Even three. Or for a monthly salary of eight hundred dollars. And I am wholly yours. Or at least six hundred ... But no less than five hundred....All of this is a joke. Pardon me for ... the irony. This is irony, although somebody may consider it sarcasm. No, it isn’t sarcasm.According to [the] Ozhegov [dictionary], “demagoguery” is “influencing the feelings and instincts of those with low-level awareness on the basis of the deliberate distortion of facts”. For a long time I suffered from not being able to argue with such demagogues as Ganna German, Taras Chornovil, Kinakh, and all the [members of the Party of Regions] and communists. It is not possible to argue logically with them. An intelligent man can hardly stay emotionally composed listening to them.When I was on Shuster’s [television programme], [fellow guest] Zhvaniya gave me a tip. It’s irony. The thing is that demagoguery requires artistry. An intelligent man can feel the falsity but cannot put his finger on it. At this point you need irony to make the demagogue’s statements sound absurd ...”C. Defamation proceedings10. On 18 July 2007 Ms German lodged a defamation claim with the Kyiv Pecherskyy District Court against the applicant company and the article’s author. She sought a retraction – in the form of the publication of a court judgment in her favour – of the allegedly false statements made in the article concerning her alleged acquisition of a flat,. She also sought compensation for non-pecuniary damage. The applicant company maintained that the statements in question had constituted a value judgment in respect of the legal provision entitling members of parliament to housing support.11. On 18 December 2007 the District Court allowed the plaintiff’s claims in part. It found that the following extracts constituted an untrue statement:“And [if I had an offer] to become a member of parliament, as in Ganna German’s case? That is, for a flat in Kyiv? ...The problem is, however, that Yanukovych wouldn’t give anyone a flat in Kyiv. We don’t have many stars, like Ganna German, [whose worth is] that of a flat in Kyiv.”12. The court found that the plaintiff had not requested or received a flat in her capacity as a member of parliament; she had bought her own flat in 2001, before she had been elected. The court considered that the above statements suggested that the plaintiff had become a member of parliament for the sole purpose of obtaining a flat in Kyiv. In the court’s view this was not a value judgment because only concrete information as to whether Ms German had exercised her entitlement to housing support could serve as the basis for such statements. Rather, the statements in question constituted statements of fact which had not been verified or proved by either of the defendants, and were negative and insulting to the plaintiff.13. Relying in particular on the provisions of the Civil Code and of the Information Act and referring to the constitutional provision guaranteeing respect for private life (see paragraphs 20 and 21 below), the court ordered the applicant company to retract this information by publishing the operative part of its judgment and to pay the plaintiff 1,700 Ukrainian hryvnias (UAH, approximately 300 euros (EUR) at the time) in compensation for non-pecuniary damage.14. The court also found that the following extract constituted a value judgment on the author’s part and rejected the claim in this respect:“What if I were given more than a thousand bucks a month? ... I believe that all journalists dream of selling themselves for a flat in Kyiv, even those who already have one ... I listened to Ganna German and I wish I were as lucky as she is. I wish I could sell myself like that!”15. The applicant company appealed, arguing, in particular, that the statement in question had been an expression of the author’s opinion. In particular, he had wondered what could have induced Ms German, “a former nationalist”, to change her political sympathies. Being aware that the Member of Parliament’s Status Act provided for housing support, the author speculated that he might be willing to change his views in exchange for a flat in Kyiv. For the applicant company, the lack of coherence in the plaintiff’s demand that a subjective opinion be retracted was illustrated by the fact that the plaintiff and the first-instance court had been unable to formulate a specific statement of retraction and had resorted to the requirement to publish the text of the judgment itself. For the applicant company, the plaintiff’s failure to formulate a specific retraction illustrated the rationale behind section 47-1 of the Information Act, under which value judgments were not subject to retraction. The applicant company argued that the requirement to retract the statement by publishing the text of the court judgment contradicted section 37 of the Press Act. The applicant company also argued that the author had not had the requisite intent to disseminate untrue information. In support of its arguments it invoked the constitutional provision guaranteeing the freedom of expression.16. On 28 February 2008 the Kyiv City Court of Appeal upheld the judgment of 18 December 2007, finding the applicant company’s arguments unsubstantiated and the District Court’s conclusions correct.17. The applicant company appealed on points of law. In addition to reiterating the arguments it had raised on appeal, it referred to the Court’s judgments in Ukrainian Media Group v. Ukraine (no. 72713/01, 29 March 2005), and De Haes and Gijsels v. Belgium (24 February 1997, Reports of Judgments and Decisions 1997‑I), arguing that according to the Court’s case-law the limits of acceptable criticism were wider with regard to a politician than in relation to a private individual and that such criticism could include recourse to a degree of exaggeration, or even provocation.18. On 23 May 2008 the Supreme Court found no grounds to review the case on points of law, finding that there were no reasons to believe that the lower courts’ decisions had breached any provisions of substantive or procedural law.II. RELEVANT DOMESTIC LAW AND PRACTICEA. Constitution of Ukraine19. Articles 32 and 34 of the Constitution provide as follows:Article 32“There shall be no interference with private and family life, unless as provided by the Constitution of Ukraine.Confidential information about a person shall not be collected, stored, used or disseminated without the person’s consent, unless in so far as provided by law in the interests of national security, economic well-being and human rights....Everyone shall be guaranteed judicial protection of the right to rectify untrue information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”Article 34“Everyone shall be guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs....The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting public health, the reputation or rights of others, prevention of the publication of information received confidentially, or maintaining the authority and impartiality of the judiciary.”B. Civil Code of 16 January 200320. Article 277 and 1167 of the Code provide:Article 277Retraction of untrue information“1. An individual whose non-pecuniary rights have been infringed as a result of the dissemination of untrue information about him or her and (or) members of his or her family shall have the right to reply and [the right to] the retraction of that information ......6. An individual whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply to, and also [the right to] the retraction of, untrue information in the same mass media, in the manner envisaged by law ...Untrue information shall be retracted, irrespective of the guilt of the person who disseminated it.7. Untrue information shall be retracted in the same manner as that in which it was disseminated.”Article 1167Grounds of Responsibility for Non-Pecuniary Damage“1. Non-pecuniary damage caused to an individual or legal person by illegal decisions, acts or inaction shall be compensated by the person who caused it, if that person [has the requisite state of mind for a civil tort]. ...”C. Information Act of 2 October 199221. Sections 47 and 47-1 of the Act provide as follows:Section 47. Liability for infringement of the legislation on information“...Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements:...dissemination of information that does not correspond to reality, that defames the honour and dignity of a person ...”Section 47-1. Indemnity from liability“No one may be held liable for making value judgments.Value 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 proved ...”D. Press Act of 16 November 199222. Section 37 of the Act provides as follows:Section 37. Retraction of information“Citizens, legal entities and State organs, and their legal representatives, shall have the right to demand that the editorial board of [a publication] publish a retraction of information disseminated about them which does not correspond to reality or defames their honour and dignity.If the editorial board does not have any evidence that the content published by it is accurate, it must, if requested by the claimant, publish a retraction of such information in [its] next issue ... or publish such a retraction on its own initiative.The retraction shall be printed in the same font and should be inserted under the heading “Retraction” in the same column where the information being retracted was published....”E. Member of Parliament’s Status Act of 17 November 199223. Under Section 35 of the Act, as worded at the material time, a member of parliament, regardless of his place of residence, had to be provided with proper housing. To this end the member could be provided with a lump sum allowance covering the cost of a dwelling in Kyiv, a dwelling made available for his term of office, or a permanent dwelling. The cost was to be financed from Parliament’s budgetary appropriations. To claim the entitlement, a newly elected or re-elected member had to submit an application with the relevant parliamentary committee within three months of commencing his or her functions.24. Sections 20, 30, 31 and 33 of the Act also provided for a number of other entitlements for members of parliament, including State-financed disability, life insurance and medical care, monthly pay at the level of ministers, severance allowance on leaving the office, increased pension, the costs of continuing education, and travel and recreational expenses.F. State Support of Mass Media and Social Protection of Journalists Act of 23 September 199725. The Act provides in the relevant parts as follows:Section 17. Liability for trespass or other actions against the life and health of a journalist and a journalist’s liability for non-pecuniary damage caused by him“In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or other [mass media professional], as the defendant, and a political party, electoral bloc, [or] an office holder (or office holders), as the plaintiff, a court may award compensation in respect of non-pecuniary damage only if the journalist or media professional [acted] with intent. The court shall take into account the outcome of the use by the claimant of extrajudicial – and in particular pre‑trial – opportunities to obtain a retraction of the untrue material, defend his honour, dignity and reputation, and settle the dispute. Having regard to the circumstances, the court may refuse [to award] compensation in respect of non‑pecuniary damage.The intent of the journalist and/or official of the media organisation means his or their stance in regard to the dissemination of information when the journalist and/or official of the media organisation are aware of the untruthfulness (недостовірність) of such information and have anticipated its socially injurious consequences.The journalist and/or [mass media professional] shall be released from liability for the dissemination of information that does not correspond to reality if the court establishes that the journalist acted in good faith and checked the information.”G. Resolution no. 7 of the Plenary Supreme Court of 28 September 1990 on judicial practice in defamation cases (repealed on 27 February 2009)26. Under paragraph 9 of the Resolution, when ordering a retraction on radio or television, a court could require an announcer to read the operative part of the judgment during the same programme or series of programmes and at the same hour. It was unacceptable for media organisations to edit the text of the judgment or to comment on it in a way that would amount to a challenge of the judgment.H. Resolution no. 1 of the Plenary Supreme Court of 27 February 2009 on judicial practice in defamation cases27. Under paragraph 24 of the Resolution, if a court adopts a judgment ordering the retraction of disseminated information, it may, if necessary, set forth in the judgment the wording of that retraction or indicate that the retraction shall be carried out by means of notifying the parties to the dispute and third parties of the judgment, including by the publishing of its text.THE LAWI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION28. The applicant company complained of a violation of its right to freedom of expression under Article 10 of the Convention, which reads in its relevant parts as follows:“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”A. Admissibility29. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. The parties’ submissions30. The applicant company submitted that Evening News was a newspaper dedicated to matters of society and politics. Its editorial board supported the political views of Yuliya Tymoshenko. In addition to factual information, the newspaper published diverse opinion pieces and polemical articles. It was above all such opinion pieces and analytics which distinguished the newspaper from other media outlets. The interference in this case therefore went to the heart of the newspaper’s activities. The domestic courts had obliged the applicant company to retract a statement which had been a value judgment rather than a statement of fact. According to the applicant company, this was evidenced by the satirical form of the article and the linguistic tools – notably hyperbole and allegory – used in it. The impugned paragraphs in the article had been merely an expression of the author’s wondering about the motives which had led Ms German, a former Ukrainian nationalist, to change her political opinions. The author had not had the requisite intent of spreading false information about Ms German. The applicant company also submitted that the requirement to publish the text of the domestic court’s judgment instead of a “retraction” had been contrary to Section 37 of the Press Act.31. The Government agreed that the judgments of the domestic courts had constituted an interference with the applicant company’s freedom of expression. However, they considered that the interference had been prescribed by law, being based on the relevant provisions of the Civil Code and the Information Act. It had pursued the legitimate aim of protecting the reputation or rights of others.32. As to the necessity of the interference, the Government submitted that the domestic courts had carefully analysed the context of the author’s statements, finding that only one paragraph in his article had contained a statement of fact and that the other paragraphs about which the plaintiff had complained had contained value judgments. According to the findings of the domestic courts, that paragraph contained the assertion that Ms German had become a member of parliament in order to obtain a flat in Kyiv. The domestic courts had found this to be untrue. The Government referred to the Court’s judgment in Lindon, Otchakovsky-Laurens and July v. France ([GC], nos. 21279/02 and 36448/02, § 57, ECHR 2007‑IV), according to which “regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention”. The Government also referred to the Court’s decision in Vitrenko and Others v. Ukraine (no. 23510/02, 16 December 2008), which, according to the Government, supported the principle that even during an election campaign an individual could not be subjected to unfair accusations by his opponent. The applicant company had submitted its arguments to the Court of Appeal and the Supreme Court, which had rejected them. In such circumstances, it was not the Court’s task to review their findings as a court of fourth instance.33. The Government also submitted that the interference had been proportionate and had not put an undue burden on the applicant company. The domestic courts’ decisions were part of the State’s compliance with its positive obligation to ensure that those subjected to defamation had a reasonable opportunity to reply.2. The Court’s assessment34. The Court finds, and this is not in dispute between the parties, that the domestic courts’ decisions constituted an interference with the applicant company’s right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in paragraph 2 of Article 10.

Outcome for Article 10: violation