The Day/Den’ journalists suffered from the aftereffects of the 1999 elections for a long time: from political perfidy that deprived the opposition of its chance, injustice, and the isolation of this newspaper, which was perhaps the only opposition print media, with the rest hiding behind the motto “It’s Not Our War!” As a result, The Day/Den’ was exposed to endless inspections, lawsuits, and other kinds of unpleasantness. Much water has flowed under the bridge since then. The political situation has changed and so have a number of journalists, and not only for the better. Yet now we have a message from that watershed year of 1999. Even more important is the fact that the European Court has recognized our standards as being European even in those days.
The European Court of Human Rights ruled (Feb. 23) that Ukraine was guilty of violating the right to freedom of expression according to the complaint filed by this newspaper’s publisher — JSC “Ukrainian Media Group.” The complaint addressed the Ukrainian court decision that found the newspaper guilty of damaging the dignity and reputation of the 1999 presidential candidates Natalia Vitrenko and Petro Symonenko in two issues (i.e., Den’, August 21 and September 14, 1999) both publications, available in Den’s archive at www.day.kiev.ua, were dedicated to these candidates and their lawsuits. In 2000, the Ukrainian courts of first instance and appeals passed rulings that discriminated against this newspaper by, among other things, qualifying value judgments as facts. The main idea in both these publications was that the above-mentioned politicians were playing into the hand of the government’s candidate Leonid Kuchma. This is precisely why they sued the newspaper. They should have saved their breath, as it transpired. Now, according to the European Court’s decision, the Ukrainian state must reimburse this newspaper’s pecuniary and non-pecuniary damages, and pay its legal expenses.
Most importantly, however, this ruling, the first of its kind with regard to Ukraine, is a signal to the Ukrainian media community, politicians, and perhaps even to the judicial system.
The European Court of Human Rights has handled similar cases. Suffice it to recall the Lingens Case (i.e., the Austrian journalist who in 1975 published two articles in a Viennese magazine, in which he criticized the Austrian Chancellor for his friendly relations with a politician who was involved with the SS during WWII). The journalist was sued for defamation and forced to pay a heavy fine. Lingens complained to the European Court of Human Rights, and the latter in its judgment of July 8, 1986, ruled that the journalist’s statements had indeed damaged the Chancellor’s reputation, but that Austria had also breached Article 10 of the European Convention on Human Rights, with regard to freedom of expression. Austria should therefore reimburse Lingens for the fine and lost opportunities, etc. Chief among the court’s arguments was: “The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual.” The court further recognized that the impugned expressions were to be interpreted in the context of the post-election political debate.
Similar considerations are found in the judgment in the case of Ukrainian Media Group vs. Ukraine. Clause 67 reads: “The Court observes that the publications contained criticism of the two politicians in strong, polemical, sarcastic language. No doubt the plaintiffs were thereby offended and may have even been shocked. However, in choosing their profession, they laid themselves open to robust criticism and scrutiny; such is the burden that must be accepted by politicians in a democratic society...” Well, perhaps things that have long become axioms for all European politicians will be discoveries for some of their Ukrainian counterparts. Probably the same is true of the entire campaign of 1999.
The Day asked Dmytro KUTAKH, the Media Group’s defense council, to comment on the judgment.
Does this judgment set a precedent?
Kutakh: It clearly defines the admissible limits of criticism concerning politicians. Another interesting aspect is that the European Court of Human Rights recognized articles that use strong, polemical, and sarcastic language as being admissible with regard to politicians, especially presidential candidates. In this sense the judgment is very important for the media in Ukraine and all other European countries.
What were the legal grounds for lodging a complaint with the European Court?
Kutakh: We proceeded from the fact that Ukraine had violated two articles of the European Convention on Human Rights and Fundamental Freedoms: Article 6 (e.g., the right “to a fair and public hearing”) and Article 10 (“Everyone has the right to freedom of expression”). The crux of the matter is that when both issues were raised in the Ukrainian courts, we argued that similar judgments of the European Court must apply in the Ukrainian courts when similar cases are heard. Also, value judgments must be distinguished from facts; a newspaper cannot be punished for expressing value judgments. In 2000, however, the Ukrainian courts totally ignored such pertinent rulings of the European Court, just as they ignored our legal stand in the matter; they offered no legal assessment of the media’s right to express value judgments and passed rulings instead, whereby value judgments were defined as facts that were contrary to reality. Accordingly, the plaintiffs were granted non-pecuniary damage. After losing our case in the Ukrainian courts of all instances, we decided that it was a matter of principle, so we lodged a complaint with the European Court of Justice.
Do you think that this judgment will make it difficult to use Ukrainian courts as a means to pressure the media? Has it taught our judges a lesson?
Kutakh: I think that we shouldn’t overestimate its effect on the Ukrainian judicial system. It must be restructured, all the more so as our courts and judges actually bear no responsibility for their decisions, for their being subsequently annulled, for breaching the claimant or respondent’s rights. This is one problem. Another problem with our judicial system is that it remains nontransparent. All court rulings must be made public knowledge (including Web sites) after they take legal effect; this will create a degree of legal culture in this country.
As for the effect of this ruling on the media at large, I’d also caution against overstatements. I mean, it does offer a broader range of opportunities for journalists, but it doesn’t open the way to their inner freedom and responsibility. This is an individual process with every journalist.
At the same time, it’s really the first judgment of the European Court of Justice in accordance with Article 10 of the Convention, with regard to Ukraine, and it is very important. The European Court has heard 7 or 8 cases on various aspects of relations between journalists and the subjects of their articles. Its ruling on The Day will be part of European practice in this sphere.