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Case #
2001
Decision
In the name of Ukraine
June 20, 2001, Zhovtnevy district court in Odesa that consists of:
Head judge: Mr. Kapli
Secretary: Ms. Dorofeyeva
Attorney: Mr. Poludenny
In the open court hearing we listened to the claim of the Ministry of
Internal Affairs in Odesa region to the editorial-board of the "Slovo"
newspaper, Ms. Astrakhovich Yelena Yuriyivna about honor and dignity protection,
business reputation and reimbursement of moral damage in the amount of
100, 000 UAH. The court
determined -
Department of the Ministry of Internal Affairs in Odesa region (MIA) filed
a lawsuit about protection of reputation and reimbursement of moral damage
to the defendant: editorial board of "Slovo" newspaper. The
demand is to publish the disproof to the article of Ms. Astrakkhovich,
called "Robbery of the black customs house", which was published
on September 15th, 2000 (# 37 (408)), and reimburse moral damage equal
to 100,000 UAH caused by this publication.
During the investigation, the plaintiff added to his demands honor and
dignity protection of MIA and also clarified which certain parts of the
article he demands to be admitted as false, discrediting his honor, dignity
and business reputation.
To support his suit the plaintiff mentioned that, according to the article
26 of the law of Ukraine "About printed media in Ukraine", a
journalist must present objective and unbiased information, instead of
using printed mass media as the way to solve his own problems with the
bodies of the Ministry of Internal affairs. Besides, a journalist must
verify the correctness of information before its publication.
The plaintiff thinks that open misinformation about activity of the bodies
of the Ministry of Internal affairs and its heads can not remain unpunished.
Moreover, the law about printed mass media prohibits spreading information
that undermines moral, discredits human honor and dignity.
This publication of untruthful information caused significant moral damage:
the personal reputation of the board of heads of the Ministry was spoiled.
According to the plaintiff, undermining of the reputation is being done
on purpose and follows the goals that contradict with the legal ways for
solution of existing problems.
Considering the character and negative consequences of the published information,
the plaintiff evaluates the moral damage caused to him by the publication,
in the amount of 100,000 UAH.
The defendant refused to admit guilt.
The defendant's representative (newspaper "Slovo"), attorney
of the newspaper Mr. Poludenny and co-respondent Ms. Asrtakhovich referred
to the fact that the publication fully complied with the law of Ukraine
"About information" and "About printed media in Ukraine"
in the part about responsibility of the journalist and the mass media
in general to publish true and unbiased information. At the same time,
the plaintiff mostly asks the defendant to disprove her evaluative judgements.
The defendant and the attorney think that conclusions, judgements and
evaluations given by Ms. Astrakhovich are well-grounded. Thus, strictly
adhering to the principle of objectiveness, foreseen in the article 5
of the law of Ukraine "About information", the editorial board
published the plaintiff's pretension after the publication of the above-mentioned
article on June 6, 2000 (#40 (411)) and showed the plaintiff's attitude
to the judgements of the journalist who wrote the article.
The defendant and her attorney state that the claimed was ungrounded.
Disposition of the article 7 of the Civil Codex of USSR determines that
only information must be disproved (information in the general understanding
of this word). Similar object for disprove is determined in the article
32 of the Constitution of Ukraine. The plaintiff demands disproof for
evaluative judgements of the journalist. But the right to speak out personal
judgements, thoughts, evaluations, opinions and beliefs is guaranteed
by article 9 of the European convention for protection of human rights
and freedoms, which is a part of the National legislation, according to
the article 9 of the Constitution of Ukraine, as well as article 34 of
the Constitution of Ukraine. Evaluative judgement is the attitude of the
person to a certain situation, event, conclusion, generalization, opinion,
belief. Based on this, publication of the evaluative judgements can not
be seen as illegal behavior. Thus, the defendant can not be obliged to
prove the truth of her evaluations, conclusions, suppositions and beliefs,
it would violate her right to freely express opinions, thoughts, and beliefs.
According to the decision of the European court for human rights in the
case Lingens vs Austria (1986) the demand to prove the truthfulness of
evaluative judgements can not be fulfilled, because such demand is a straight
violation of the freedom for opinions, which is in the basis for all rights,
guaranteed by the article 10 of the European Convention of human rights
and freedoms.
Besides, the problems, discussed in the article, are of crucial importance
to the city because they mention adherence to human rights (rights, mentioned
in the articles 15, 34, 43, 48 of the Constitution of Ukraine) by the
governmental bodies. The editorial board decided to inform the public
about judgements that the plaintiff tries to disprove. The principle of
responsibility of the government before its citizens for its actions,
stated in the article 3 of the Constitution of Ukraine, can not be fulfilled
other than through wide publication and criticism of the governmental
activity in the mass media. Thus, information and judgements about activity
of any governmental body is of a huge interest to the public. So if the
journalist complies to the principle of objectiveness, such publication
excludes responsibility for publication of judgements and information
in general. Practice of the European Court follows the same way (Frezau
and Ruare vs. France, Torheison vs. Island).
The defendant and her attorney think that the plaintiff is unable to logically
ground his demand to disprove judgments of the journalist, which he named
untruthful, and distorted their meaning. Having extracted phrases and
sentences from the context that provide evaluation and judgements the
plaintiff analyzed the information he created for himself and factually
is now demanding to disproof something that he himself had composed out
of the pieces from the publication. The defendant and her attorney underlined
that some of the evaluative judgements were neutral, some had no relation
to the plaintiff at all.
The journalist's actions do not violate the 7th article of the Civil codex
of USSR. As the plaintiff represents the legal entity, not a person, he
can not possess such qualities as honor and dignity, that only a person
or social creature can possess. Accordingly, the plaintiff can not demand
protection of right for respect for these qualities.
The plaintiff never proved that his business reputation was worsened,
as well as existence of positive business reputation at all. The defendant
and her attorney think that the plaintiff as a body of power can not possess
such non-material asset as business reputation due to his status in the
State, special order of creation, functioning, financing and cancellation
of activity. He also does not belong to the number of people whose activity
is aimed at getting profit or satisfaction of citizens' need in self-organization.
Precisely these factors explain absence of evidences about existence of
business reputation.
In violation of the Verkovna Rada decree # 4 from March 3, 1995 with further
amendments and corrections, the plaintiff has not only failed to present
to the court the proof of moral damage, he also has not proved the financial
equivalent for moral damage. Moreover, there is a demand in the court
suit that the defendant can not remain unpunished, which shows that the
reimbursement for moral damage in the amount of 100 thousand UAH is viewed
as a punishment, which proves absence of moral damage in its ordinary
meaning. The amount in 100 thousand UAH was counted arbitrarily, as determined
during the court hearing. The plaintiff counted total amount of staff
at the Ministry of Internal Affairs in Odesa region and according to article
440-1 of Civil Codex of Ukraine multiplied five minimal salaries on each
employee, which is 118 UAH. In this case the total amount would make more
than 6 mln UAH and, but the plaintiff is only asking for 100 thousand
UAH due to "hard financial situation at the newspaper Slovo",
which the plaintiff could not prove at the hearing.
Having listened to the evidences of two partied and examined materials
of the case, the court decided to refuse in satisfaction of a claim due
to:
On September 15th, 2001 the newspaper "Slovo" #37 (408) published
the article "Robbery of the black customs house" by Yelena Astrakhovich.
The plaintiff demands to disprove the next phrases from this publication:
1. "and each time there were representatives of the Ministry of Internal
Affairs or structures under there control on the opposite side"
2. "… only 10-15% of loads is officially registered at the customs
house…"
3. "This whole process… is impossible without a "roof".
It is provided by the heads of institutions of the Ministry of Internal
Affairs"
4. "For example, at the Illyichevsk seaport the head of the Organized
Crime Division Valeriy Romanovsky provides such a "roof"
5. "Another person from the same Organized Crime Division is also
related to Odesa seaport"
6. "… there were suppositions about relations between Security Service
of Ukraine in Odesa region with people in the Ministry of Internal Affairs
in Odesa region and contraband flows"
7. "… volumes of discrediting information about Odesa police were
taken to Kiev"
The plaintiff thinks that the above-mentioned phrases do not correspond
to reality, descredit his dignity, honor and business reputation.
To prove distribution of arguable publication the plaintiff presented
the copy of the newspaper column with this article.
When clarifying the claim's demands, the representative of the plaintiff
offered the defendant to publish the court resolution in the same column
with the same font and size.
To ground his right to file a lawsuit, the plaintiff mentioned articles
47-49 of the Law of Ukraine "About information", article 37
of the law of Ukraine "About printed mass media in Ukraine",
article 7 of the Civil Codex of USSR. Along with this, from the core of
claim demands and the form of the claim (not a complaint, but a claim)
we can make conclusion about intentions of the plaintiff to participate
in the case, that is examined in the court according to action proceeding
based on article 7 of the Civil Codex of USSR.
According to the disposition of this norm, the civic and legal responsibility
in the frameworks of the article 7 of the Civil Codex to disprove the
information and reimburse moral damage is possible when three components
of the law violation are present: information that does not correspond
with reality or is written untruthfully, fact of its distribution and
consequences of its distribution that prove discredit of honor, dignity
and business reputation for the person or harm to his business.
Paragraph 3 of Verkhovna Rada decree from September 28th, 1990 #7 (with
further corrections and amendments) obliges all courts to determine all
three components of such violation of law: "When examining civil
cases, opened in accordance with the article 7 of the Civil Codex of Ukraine,
all courts must determine if the distributed information discredits honor,
dignity, and business reputation of the plaintiff and if this information
is true" The corpus delicti, determined in the part 1 of the article
7th of the Civil Codex, is material. That is why there must be cause and
effect relation between unlawful guilty action and negative consequences.
According to the part 1 of the 7th article of the Civil Codex, personal
inalienable rights are the object for unlawful infringement: the right
for existence and protection of dignity, business reputation, right for
respect of dignity. During the court hearing the plaintiff agreed with
literal philosophical explanations of such terms as "honor"
as a socially positive evaluation of moral and mental qualities; and "dignity"
as self-evaluation of personal social and moral qualities. Plaintiff's
interpretation of such terms as "honor" and "dignity"
can not be accepted by the court as they contradict the generally recognized
meanings. Besides, the plaintiff's interpretation of term "honor
of MIA" is covered by the general term of business reputation of
the organization, and interpretation of "dignity of MIA" is
beyond the rules of logical construction of judgements. Thus, the court
thinks that the right for existence and protection of honor, as well as
the right for respect to dignity can not be inherent in organization,
but the plaintiff is the organization. And therefore, the court thinks
that the plaintiff's demand to protect honor and dignity of the MIA can
not be satisfied due to absence of the object of infringement.
Article 30 of the Civil-Process codex determines responsibility of the
party to prove to the court the presence of the circumstances that are
mentioned in the case. Disposition of the article 7 of the Civil Codex
inflicts upon the defendant only responsibility to prove truthfulness
of distributed information. The law does not have exceptions as to responsibility
to prove other circumstances. That is why, in this certain case, the plaintiff
has the responsibility to prove facts of distribution of false information,
infringement upon his business reputation, fact of presence of business
reputation.
According to the joint decree of the Fund of State property of Ukraine
and State Committee of Ukraine of sciences and technologies # ¹ 969/97
from July 27,1995 "business reputation (goodwill) belongs to non-material
assets, objects of the right to use economic, organizational and other
benefits". Thus, the cost for business reputation and decrease of
its cost must be exposed in the balance of the organization as the cost
(change in cost) of non-material assets.
The plaintiff did not present the court proof for existence of his business
reputation at all, including decrease of the level of his business reputation
as a consequence of distribution of arguable publication in particular.
During the court hearing the representative of the plaintiff stated, in
contraction with article 30th of the Civil-Process Codex, that the plaintiff
does not have to proof the fact of existence of his business reputation.
Along with this, he explained the court, that he can not proof decrease
in the level of reputation.
Based on the above-mentioned, the court thinks that the publication of
the arguable article did not influence and could not influence the level
of business reputation. Considering the personal status of the plaintiff
as the body of power, special order of its creation, financing, functioning
and liquidation as the organization, the court thinks it is possible to
agree with the defendant's argument about absence of business reputation
as non-material asset, which is inherent to organizations, functioning
in the sphere of civil society.
In such conditions the court concluded that the defendant's actions in
preparation and publication (distribution) of the arguable article do
not make up a crime, provided in the article 7th of the Civil-Process
Codex. And thus there is no ground to oblige the newspaper to publish
the disproving article as the mean of civil and legal responsibility,
and reimbursing moral damage.
Moreover, the court thinks it is impossible to disprove the above-mentioned
phrases due to the following reasons.
Part 1 of the 7th article of the civil codex of Ukraine determines that
only information can be disproved. Article 1in the Law of Ukraine "About
information" understands "documented and publicly announced
data about events and scenes, that happen in society, State and nature".
In its content and understanding features, the quotes 1, 3, 4, 5, 6, and
7 are evaluative judgements: they are conclusions and suppositions based
on facts, which are provided in the published article. The plaintiff artificially
created these phrases by cutting them out of the context, and the meaning
of these phrases was changed accordingly. The truthfulness of the arguable
phrases can not be proved, as it is required in the article 7 of the Civil
Codex of Ukraine.
According to the article 34 of the Constitution of Ukraine and article
10 of the Convention for human rights and freedoms, which is a part of
National legislation according to article 9 of the Constitution of Ukraine,
every person has the right to publish opinions, views, and judgements.
Based on this, expression of evaluation judgements can not be viewed as
unlawful action if it does not contain elements of insult. That's why
the publication of arguable judgements can not be viewed as violation
of responsibilities, provided in the article 26 of the Law of Ukraine
"About mass media (press) in Ukraine"
In the given conditions the court thinks that obligation to disprove evaluative
judgements would violate the right to express opinions, views and judgements
and would lead to establishment of mediated censorship, which is prohibited
by article 15 of the Constitution of Ukraine.
The court also points that the lawsuit was filed y Ministry of Internal
Affairs in Odesa region. At the same time, information from the quote
2, judgements from quotes 3, 4, 5, and 6 do not have relation to the plaintiff.
According to articles 4 and 104 of the Civil-Process Codex of Ukraine,
people, mentioned in these quotes have the right to file lawsuits themselves.
The plaintiff did not present evidences of the right to present these
people in the court. That is why the court can not accept demands to disprove
arguable judgements.
Based on the above mentioned and articles 15, 32, and 34 of the Constitution
of Ukraine, article 10 of the Convention for protection of human rihgts
and freedoms, articles 7, 440-1 of Civil Codex of USSR, articles 15, 30,
62, 202 of Civil-Process Codex of Ukraine the court
Decided:
Deny the lawsuit of the Ministry of Internal Affairs of Odesa region to
the editorial board of the newspaper "Slovo", Astrakhovich Yelena
Yuryevna about protection of honor, dignity and business reputation and
reimbursement in the amount of 100 thousand UAH.
The decision can be appealed in the Odesa regional court through Zhovtnevyy
district court in Odesa within 10 days from the moment of its publication.
Judge of Zhovtnevy district court
Odessa,
A.I. Kaplya
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