FIFTH SECTION

DECISION

Application no . 38320/05 Vasyl Vasylyovych YARUSHKEVYCH against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 31 May 2016 as a Chamber composed of:

Angelika Nußberger, President, Khanlar Hajiyev, Erik Møse, Faris Vehabović, Yonko Grozev, Mārtiņš Mits, judges, Sergiy Goncharenko, ad hoc judge, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 5 October 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Vasyl Vasylyovych Yarushkevych, is a Ukrainian national, who was born in 1959 and lives in Yuzhynets, the Chernivtsi region. He was represented before the Court by Ms N.P. Svyrgun, a lawyer practising in Kyiv.

2. The Ukrainian Government (“the Government”) were represented by their then Agent, Ms Valeria Lutkovska.

3. M s Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge ( Article 26 § 4 of the Convention and Rule 29 § 1).

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. On 7 September 2000 the Chernivtsi Regional Court found the applicant, a State bailiff at the material time, guilty of fraud in conjunction with abuse of position, as well acceptance of a bribe, also with abuse of position. It sentenced him to a three-and-a-half-year prison term and decided on an injunction against occupying official posts for the same period and confiscation of his personal property.

6. The applicant challenged the judgment on appeal.

7. In its 22-28 September 2000 issue, the Molodyy Bukovynets , a triweekly regional newspaper with circulation of about 35,000 copies (according to the information provided by the applicant), published an article on the court proceedings in question. The article, entitled “A bailiff has been convicted” ( «Засудили судовиконавця» ) , commenced by the following introductory paragraph:

“On 7 September the criminal panel of the regional court sent Vasyl Yarushkevych, who had served as a bailiff in Kitsman, down for three and a half years behind bars. According to the court ’ s judgment, he is “deprived of the right to occupy official posts for three and a half years and is to serve a sentence in a high-security colony”. Also all Yarushkevych ’ s property is to be confiscated.”

8. Following this introductory paragraph, the article went into detail on the applicant ’ s conduct which had led to his conviction, including the victims ’ last names and details of their statements, an interview with the presiding judge, who explained that the applicant ’ s personal circumstances, including his status as a Chernobyl victim with no prior criminal record, were taken into consideration in choosing a mild sanction, and the journalist ’ s allegation that if the applicant were unable to pay his civil debt under the judgment, his car or his apartment might have to be sold. The article finished with the following phrase: “Easy gain turned into heavy consequences”.

9. On 24 October 2000 the Supreme Court of Ukraine quashed in part the judgment of the first-instance court in so far as it concerned the bribe-taking charge and remitted this part of the case to the prosecution authorities for additional investigation. The Supreme Court also reduced the applicant ’ s prison sentence and the injunction on the occupancy of official posts to three years. Subsequently (on 9 March 2004) the Kitsman District Court discontinued the criminal proceedings on the bribe-taking charge against the applicant as time-barred.

10. On 15 October 2003, having returned to his village after serving his sentence, the applicant brought defamation proceedings before the Pershotravnevyy District Court of Chernivtsi (“the Pershotravnevyy Court”) against the Molodyy Bukovynets newspaper and the journalist who had authored the article in question. He alleged that the article contained an untrue statement about his conviction in respect of the acceptance of a bribe. The applicant noted in this connection that the respective part of the judgment had eventually been quashed and that the case had been remitted for additional investigation. The applicant further submitted that the publication had caused him non-pecuniary damage, as it had resulted in his stigmatisation by the villagers as corrupt, that it had brought about complications in his family relationships and had made it more difficult for him to find employment and reintegrate into society. Accordingly, the applicant sought a declaration of the impugned statement as untrue and thus defamatory, publication of its refutation by the defendants, and compensation in respect of non-pecuniary damage.

11. Although the applicant missed the one-year limitation period established for this kind of claims, the court considered that he had had valid reasons for that and accepted his claim for consideration.

12. On 15 December 2004 the Pershotravnevyy Court found against the applicant. It noted that the information contained in the disputed article had been accurate at the time of its publication and could therefore not be considered defamatory or subject to refutation.

13. The applicant appealed. He insisted that neither at the time of the publication nor later had his guilt in respect of acceptance of a bribe been established by a final judicial decision. He further alleged that publishing a full and detailed account of his conviction before it became final was in violation of the constitutional principle of the presumption of innocence.

14. On 6 April 2005 the Chernivtsi Regional Court of Appeal upheld the first-instance court ’ s judgment and its major point of reasoning that, when the article at issue had been published, the information about the conviction was accurate. The court further stated:

“As regards the appellant ’ s arguments that by their publication the defendants violated the principle of presumption of innocence ... they are ill-founded.

It has been established that the author of the article did not accuse [the applicant] of crimes before the pronouncement of the judgment in his case, but that he [the journalist] merely reported on the contents of the judgment, which had been publicly pronounced.

Current legislation of Ukraine, including the Law of Ukraine “On Printed Media”, ... does not prohibit journalists from providing their readers with information concerning convictions by first-instance courts which have not yet become final. Furthermore, it is well-known that first-instance court judgments are subject to appeal ... and the author of the publication did not state that the conviction was final.

The first-instance court ’ s judgment is also in compliance with the requirements of Articles 6 and 10 of the [Convention] concerning public hearings of criminal cases and freedom of expression.

The case-file materials indicate that the judgment was pronounced in respect of [the applicant] not as a private person, but as an official having a wider range of obligations to the society and the State. Consequently ... the journalist had the right to analyse this thoroughly and report the proceedings to the public ... ”

15. The applicant appealed on points of law, alleging in particular that the publication went beyond mere reporting on the outcome of the proceedings in the first-instance court. He submitted that it was couched in such terms as to leave no room for doubt in the reader ’ s mind that the court ’ s findings were correct. It featured details, unnecessary for reporting on a non-final conviction, such as the court ’ s reasoning with respect to particular witness statements, a reference to the applicant as an apartment owner and other information not warranted by the context.

16. On 11 June 2007 the Ternopil Regional Court of Appeal, acting as the cassation instance, rejected the applicant ’ s request for leave to appeal in cassation.

B. Relevant domestic law

17. Relevant domestic law can be found in the judgment in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 22-24 and 26, 29 March 2005 ).

COMPLAINT

18. Relying on Articles 6 § 2 and 8 of the Convention, the applicant complained about the rejection of his defamation claim by the domestic courts.

THE LAW

19. The applicant alleged that he had received no protection from the State in respect of a serious infringement on his reputation and dignity. According to him, the domestic courts had erred in considering the contested publication to be accurate, because his conviction had not yet been final at the material time.

20. The Court reiterates that it views complaints before it as characterised by the facts alleged in them and not merely by the legal grounds or arguments relied on. It observes that in the present case the applicant did not allege any responsibility in respect of public officials as regards the dissemination of material infringing the presumption of innocence. Nor was it alleged that the publication had influenced the final outcome of the criminal proceedings. Being master of the characterisation to be given in law to the facts of the case and having regard to the substance of the applicant ’ s complaint, the Court decides to examine it only under Article 8 of the Convention, which reads as follows in the relevant part:

“1. Everyone has the right to respect for his private ... life ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

21. The Government contested the applicant ’ s arguments. They submitted, in particular, that the domestic courts had duly balanced the applicant ’ s right to respect for his private life under Article 8 of the Convention and the newspaper ’ s right to freedom of expression under Article 10 of the Convention.

23. The Court has already established in its case-law that “private life” extends to aspects relating to personal identity and reputation (see, for example, Pfeifer v. Austria , no. 12556/03, § 35, 15 November 2007, and Petrina v. Romania, no. 78060/01, §§ 27-29, 14 October 2008). Moreover, in order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life ( see A. v. Norway , no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).

24. More specifically, the Court considered that reputation had been deemed to be an independent right mostly when the factual allegations were of such a seriously offensive nature that their publication had an inevitable direct effect on the applicant ’ s private life (see Karakó v. Hungary , no. 39311/05, § 23, 28 April 2009, and Pola nco Torres and Movilla Polanco v. Spain , no. 34147/06 , § 40, 21 September 2010).

25. The Court has also held that Article 8 could not be relied on in order to complain of a loss of reputation which was the foreseeable consequence of one ’ s own actions such as, for example, the commission of a criminal offence (see Sidabras and Džiautas v. Lithuania , nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII). Applying the above principle to the case of Mikolajová v. Slovakia , the Court laid emphasis on the fact that the applicant had never been charged with or proved to have committed any criminal offence, whereas the police had stated the opposite in its decision to drop the case (no. 4479/03 , § 57, 18 January 2011) .

27. The Court, however, does not consider it necessary to further explore this issue, because it considers the application to be inadmissible in any event for other reasons analysed below.

28. Concerning cases in which a violation of the rights guaranteed in Article 8 is asserted and the alleged interference with those rights originates in an uttered or published expression, the Court has pointed out in its case-law that when protecting the rights guaranteed under Article 8, the State is obliged to have due regard to the rights protected under Article 10. In such cases, the Court will need therefore to balance the applicant ’ s right to “respect for his private life” against the public interest in freedom of expression, an interest in which the journalists play a critical role as public watchdogs. In doing so, the Court will keep in mind that no hierarchical relationship exists between the rights guaranteed by both articles (see, for example, Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010) .

29. The Court has always stressed the contribution made by photos or articles in the press to a debate of general interest (see, in particular, Von Hannover v. Germany , no. 59320/00, § 60, ECHR 2004 ‑ VI, and Tammer v. Estonia , no. 41205/98, § 68, ECHR 2001 ‑ I). Furthermore, in cases concerning debates or questions of general public interest, the extent of acceptable criticism is greater in respect of politicians than in respect of private individuals (see Petrina , cited above, § 40). The Court has also held that civil servants, likewise, may be exposed to a wider limit of “acceptable criticism” of their activities (see Timciuc v. Romania (dec.), cited above, §§ 147 and 150, and Lavric v. Romania , no. 22231/05 , §§ 33-35 , 14 January 2014 ).

30. Turning to the circumstances of the instant case, the Court notes that the impugned article referred to the professional activity of the applicant as a State bailiff, whose function was to ensure the proper enforcement of judgments. The Court therefore considers, and this was also pointed out by the domestic courts in the defamation proceedings, that, firstly, the article concerned a matter of public interest and, secondly, the applicant was exposed to a wider limit of “acceptable criticism” of his activity (see Bédat [GC], cited above, § 51).

32. The Court observes that in the present case the applicant did not complain of any prejudice of the article in question for the fairness of his trial. His only grievance was that the mentioned article contained an untruthful statement about a part of his conviction.

33. The Court reiterates that the way in which the information was obtained and its veracity are also important factors to be taken into consideration while balancing the conflicting interests under Article 8 of the Convention, on the one hand, and Article 10, on the other. Indeed, the Court has held that the safeguard afforded by Article 10 of the Convention to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, and Eerikäinen and Others v. Finland , no. 3514/02, § 60, 10 February 2009).

34. The Court notes that in the present case the domestic courts of three levels of jurisdiction examined the applicant ’ s argument concerning the veracity of the impugned publication. They stated, in particular, that the journalist had not presented the applicant ’ s conviction as final contrary to the applicant ’ s submissions. Furthermore, the courts noted that the judgment in the applicant ’ s criminal case had been pronounced publicly and that nothing prevented the journalist from reporting on it. Moreover, it was his professional duty given the matter of public interest involved. Lastly, the Ukrainian courts observed that the contents of the judgment had been reported accurately.

35. The Court considers that the domestic courts made a thorough examination of the case and duly balanced the opposing interests involved, in conformity with the Convention standards.

36. It follows that this application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 23 June 2016 .

             Claudia Westerdiek Angelika Nußberger Registrar President