CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 15 septembre 2022

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display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sCC018295 { font-family:Arial; font-size:5.33pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB853CD26 { font-family:Arial; font-size:8pt }   FIFTH SECTION CASE OF ANATOLIY YEREMENKO v. UKRAINE (Application no. 22287/08)   JUDGMENT This version was rectified on 10 November 2022 under Rule 81 of the Rules of Court   Art 10 • Freedom of expression • Failure of domestic courts to conduct balancing exercise between conflicting interests in defamation proceedings brought by judges and holding journalist civilly liable for published newspaper article written on alleged judicial corruption • Absence of relevant and sufficient reasons • Failure to apply standards in conformity with principles embodied in Art 10 or to base decisions on an acceptable assessment of the relevant facts • Interim injunction, limited to ordering the removal of an article from the newspaper’s website pending the examination of the defamation case, did not hamper the applicant’s ability to disseminate information and ideas or undermine the very essence of the public debate   STRASBOURG 15 September 2022   FINAL   15/12/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Anatoliy Yeremenko v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Ganna Yudkivska,   Stéphanie Mourou-Vikström,   Lado Chanturia,   Arnfinn Bårdsen,   Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   22287/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr   Anatoliy Vasylyovych Yeremenko (“the applicant”), on 26 April 2008; the decision to give notice to the Ukrainian Government (“the   Government”) of the complaint concerning the alleged breach of Article   10 of the Convention; the parties’ observations; Having deliberated in private on 31 August 2021 and on 21   June   2022, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The case concerns defamation proceedings against the applicant following the publication of an article he had written on alleged judicial corruption and an injunction ordering to take down the publication in question from the newspaper’s website pending the examination of the defamation case. The applicant complains under Article 10 of the Convention. THE FACTS 2.     The applicant was born in 1949 and lives in Kyiv. He was represented by Ms L.L. Pankratova, a lawyer practising in the same city. 3.     The Government were represented by their Agent, most recently, Mr   I.   Lishchyna. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND TO THE CASE The article of 12 March 2005 5.     The applicant is a journalist. At the material time he was working for the national weekly analytical newspaper Dzerkalo Tyzhnya , which had a circulation of approximately 57,000 copies. 6 .     On 12 March 2005 in a series of publications written by the applicant, an article entitled “Black triad: nothing else matters in the case” (“Чорна   трійка: все інше справи не стосується”) was published in the above newspaper. On 18 March 2005 it was published on the newspaper’s website. 7.     In the article the author referred to a previous publication of his and noted that in a certain case (no. 27/37), which had been pending for some time before the courts and had at least twice been remitted to the lower courts, a judgment had been taken on the basis of a forged copy of a document, the original of which was part of the materials in the case file in a certain set of criminal proceedings. The Donetsk Commercial Court of Appeal had, nevertheless, delivered its judgment on the basis of the forged copy. The applicant went on, describing what he called a “system for obtaining a required result”. In order to get the result, a particular law firm had been contacted. The law firm had been paid a substantial fee by the plaintiff but had then “surprisingly” taken no further part in the proceedings, in which the plaintiff (a State enterprise) had been represented by its own lawyers. As for the courts, they had “carefully referred the case” up to the Higher Commercial Court which, in turn, had taken an excessively long time over the proceedings before finally remitting the case to a lower court “for the absence of a copy of the decision complained of”. In the meantime, the plaintiff had been liquidated, which, according to the applicant, had allowed numerous wrongdoings to be hidden. 8.     The full text of the article reads as follows: “In May last year, DT [ Dzerkalo Tyzhnya ] (no. 21, 29 May 2004) published an article entitled ‘How the court validated the copy of the document while the original document was missing’ [“ Як суд ‘легалізував’ ‘копію’ при відсутності оригіналу ”]. It discussed an unprecedented legal incident in the history of Ukrainian justice that occurred when, based on a highly doubtful copy (in terms of the quality of the print and even more in terms of the content) of a certain document [a guarantee letter], the court delivered a judgment that has been challenged by the respondent for four years now. Incidentally, it was challenged at the same time as the presidential decree on the formation of appellate courts in Ukraine was issued for one simple reason: according to the respondent, they have never issued a document with such a [registration] number to the plaintiff and have not provided any guarantees. Nevertheless, since there are many different methods to make any conflict of interest palatable for Themis, the case has become a kind of symbol of dignity and a fetish of the shortcomings of the very structural judicial system adopted from the developed democracies which was based on a system tainted with ‘sovietness’ [ совковостью ] and ‘telephone law’ formation of the principles of independence of the third branch of power in our State. [paragraph 1] DT has repeatedly described the vicissitudes of the litigation and mutual claims of the parties in the dispute. In the three years before the publication of the [above-mentioned] article, case no. 27/37 underwent two rounds of court proceedings – from the court of first instance to the judgment of the Supreme Court of Ukraine. There was also a third round – under newly discovered circumstances. In the scope of criminal proceedings instigated against the limited liability company N., which stole from a State transport shipping enterprise, Intertrans, [something, it was not specified what] worth more than 8.2 million hryvnias (UAH) and then vanished without a trace, the prosecutor’s office discovered the original of the controversial guarantee letter. It turned out that the guarantee letter, referred to by the plaintiff (Intertrans), had been provided by the defendant to a completely different enterprise, which had initially been stated by the party at all the court hearings. However, for some reason, that was never taken into account. The Donetsk Commercial Court of Appeal could have set the record straight, but instead, having established the existence of the guarantee letter in the criminal case file, it delivered a decision based on a ‘copy’ [of that letter]. Accordingly, this author naturally asked the question: ‘I wonder what the commercial justice system will come up with this time in order to protect the State enterprise/structure that caused substantial pecuniary damage to the State?’ [paragraph 2] Reality has surpassed the most daring expectations. Further immersion in the twilight of this dark and shady subject of how commercial disputes in the Donetsk region are resolved gives you the impression that a system exists that is quite primitive in terms of the scheme and reliable in terms of efficiency for obtaining the desired result in almost any case. At the same time, one gets the impression that the essence of the problem does not matter at all to its facilitators. What is important is that the customer (usually   the   plaintiff) comes to the right place at the right time. [paragraph 3] As a rule, this is a law firm to which large amounts are legally transferred for ‘legal services’. Subsequently, it is difficult to follow what active role the law firm takes in the court proceedings. Instead, the representatives appear, or, as in the case of Intertrans, which for some unknown reason paid a fee of UAH 400,000 to the mysterious I., are content with the participation of their own lawyers in the court proceedings. Throughout the entire process, the case is considered by a host of servants of commercial justice in the Donetsk region, who pass it on with care and concern up to the Higher Commercial Court of Ukraine. [paragraph 4] So, when the original ‘copy’, and then an additional document proving the forgery of the ‘copy’ were discovered, it became clear that it was no longer necessary to discuss the adversarial nature of the arguments, but the falsification and intent, which is not the   subject matter of commercial disputes, but of criminal investigations. And again, just the facts. The Higher Commercial Court of Ukraine (HCCU) made its mark once again. Contrary to Part 3 of Article 114 of the Commercial Procedural Code of Ukraine, which provides for a one-month period for examining a request for review of a court decision due to newly discovered circumstances, the HCCU delayed examining the case for nine months. [paragraph 5] First, the HCCU received all the necessary materials from the Donetsk Court of Appeal and appointed the day of the hearing. But when the parties arrived at 6   Kopylenka St. in Kyiv, they discovered that nothing was going to happen. Apparently, the document was missing. Accordingly, the HCCU immediately established ‘as it can be seen from the content of the cassation appeal, the defendant challenged the ruling of the Donetsk Commercial Court of Appeal of 30 June 2004. However, the case file does not contain the contested ruling or any mentions thereof, therefore case no. 27/37 must be remitted to the Donetsk Regional Commercial Court for proper registration in accordance with the requirements of the law in force.’ So, a new date was set and the Donetsk Regional Commercial Court was assigned with a task, although it’s clear that it was meant for the Donetsk Commercial Court of Appeal. But these are different State institutions, aren’t they? Or maybe it has been a single structure for a long time, a fact the judiciary of the largest commercial court of first instance in Ukraine still does not even suspect, but which is clear to Kyiv, and that’s why they wrote it? [paragraph 6] In short, so far no one has bothered to answer where the ruling was and where it suddenly came from in the materials of case no. 27/37. They quietly sweep it under the carpet, although most likely it wasn’t an accident and they were achieving a specific task: to delay consideration of the case until 1 February 2005. Indeed, on that very day, in accordance with order no. 797 of 1 September 2004 of the Ministry of Transport ‘in order to increase the efficiency of the use of State property’, the liquidation of Intertrans was completed and it was removed from the United State Register of Enterprises and Organisations of Ukraine. Everything turned out as planned. The court hearing took place after the specified date, and the case file has not yet been returned from Kyiv to Donetsk. Note, this is only a part of the State problem, inherited from the previous leadership of the Ministry of Transport. Informed sources claim that the liquidation of Intertrans made it possible to bury amounts much larger than the unjustly recovered funds from I.-Bank based on the ‘copy’. However, this is yet another topic worthy of journalistic attention.” [paragraph 7] 9.     The article ended with the following paragraphs (the eighth and ninth paragraphs): “By the way, [Ch.], the managing director of joint-stock company [D.], conducted an investigation and came to the conclusion that there was an organised group operating in the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal. In a letter to the head of the parliamentary sub-committee on combating organised crime and corruption in law-enforcement bodies and courts, he set out the names of the members of the group and the detailed mode of operation of the whole scheme. As proof, [Ch.] cited case no. 8/55, in which he had been a defendant against the State enterprise Ugolnaya kompaniya ‘Krasnolimanskaya’, concerning the invalidation of a contract, as well as a number of other similar disputes, which were subsequently quashed by the Supreme Court of Ukraine. The judges, well known from case no.   27/37, appear everywhere. [paragraph 8] The reason for my address to the Verkhovna Rada – said [Ch.] – was case no. 8/55. While the case was going through all the [judicial] instances, I felt the pressure of the system. Let’s say an interested client comes knocking and asks for assistance with a case that will clearly lose. They recommend that he goes to law firm [L.]. Then the contract is concluded with the client, the money is transferred, and the claim is prepared. Then, in spite of [any] existing procedure, the case is ‘distributed’ to the right judge. After that, the case is always decided in the client’s favour. If another party lodges an appeal, a so-called ‘black triad’ exists, which embraces the principle [that] ‘nothing else matters in the case’. Most people who have been through these two [judicial] instances give up. They lose their faith in justice and do not apply anywhere else. They say to themselves, ‘they are all tarred with the same brush’.” [paragraph 9] Interim injunction proceedings 10 .     On 7 April 2005 judges A., C., D., E., B., and F. applied to the Voroshylovsky District Court of Donetsk City (hereinafter the “District   Court”) for the application of “preventive measures and securing of evidence” ( заява про вжиття запобіжних заходів та про забезпечення доказів ). They argued that the article of 12 March 2005 “Black triad: nothing else matters in the case” contained a negative evaluation of the activity of the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal and was not based on any facts. The style of the article was extremely negative. In particular, the claimants indicated that the following statements did not correspond to reality: “an organised group”, “the detailed mode of operation of the whole scheme”, “the pressure of the system”, “assistance with a case that will clearly lose”, “in spite of [any] existing procedure, the case is distributed to the right judge”, about existence of a “black triad” and the principle of “nothing else matters in the case”. The applicant “had not verified the information in question” and had thus failed to comply with his professional duties. According to the claimants, the publication in question breached the honour, dignity, and professional reputation of the above-mentioned courts, their management, and the judges. In particular, it was noted that judges E., C., D. and F. had examined case no. 8/55, which was mentioned in the publication, and therefore the article had caused them non ‑ pecuniary damage. Similar damage had been caused to A., the Head of the Donetsk Commercial Court of Appeal who “was responsible for the organisational management of the court” and B., the Deputy Head of the Donetsk Regional Commercial Court who “according to distribution of duties, performed management of the structural unit that included the judges who had examined case no. 8/55”. 11.     The claimants stated that they would lodge a defamation claim for damages against the newspaper, the applicant and Ch. (they eventually did so on 18 April and 18 August 2005 (see paragraph 23 below)) as the article in question contained “elements of an interview, i.e. the last paragraph containing eventually the majority of the untrustful information”. Referring, inter alia , to Articles 277 and 278 of the Civil Code of Ukraine (“the CCU”   – see paragraph 34 below), they argued that their rights were being infringed while the article was still available online and requested its removal under Article 62-1 of the Code of Civil Procedure (“the CCP” – see paragraph 35 below). 12.     The claimants’ request was for an order against the editorial board of the newspaper to remove the article from the newspaper’s website. In addition, they also asked for the attachment of the newspaper’s property, the property of the applicant and that of Ch. in order to secure their claims. Finally, they asked that the newspaper provide the documents their editorial board and the applicant had used to verify the information published in the article. 13 .     On 8 April 2005 the District Court ordered the editorial board of Dzerkalo Tyzhnya to remove the article from the newspaper’s website. In its one-and-a-half-page decision the court merely reiterated the content of the claimants’ request. The court then referred to Article 152 § 2 of the CCP, which set out the possible injunction measures for securing a claim, and noted that the request should be granted in part, providing no reasoning or assessment of the claimants’ position. 14.     The applicant, the newspaper and Ch. appealed against this decision, noting, inter alia , that an interim injunction such as taking an article down from a website was not prescribed under domestic law, and furthermore, that the court had referred to Article 152 § 2 of the CCP which provided for interim measures after lodging a claim and not before. They further noted that the court had failed to provide any reasoning. In particular, they argued that the article had not named a single judge and that therefore the claimants had failed to prove that their rights had been breached. 15 .     On 26 August 2005 the Donetsk Regional Court of Appeal upheld the District Court’s decision. Having reiterated the claimants’ request and quoted Article 278 § 2 of the CCU, the court noted the following: “The challenged article carries information which is disseminated on the Internet. Since such information is accessible to the general public and is difficult to control, the removal of the article from the website (similar to a property attachment under paragraph 2 of Article 62-2 of the CCP) is the only measure that would ensure protection of the individual right pending examination of the case on the merits. [The first-instance] court relied on Article 152 of the CCP which provides for securing a claim by prohibiting certain actions. Such reference is erroneous since no claim had been lodged at the time when the ruling was delivered. However, this shortcoming cannot serve as a ground for quashing the court’s ruling, as the request had been examined on the merits correctly”. 16.     The applicant appealed in cassation, arguing that Article 62-2 of the CCP did not prescribe any interim measure such as removing an article from a website. He further stated that the court had failed to provide any reasoning for its decision and that the claimants had not provided any evidence to support their argument that their rights had been infringed. 17.     Some two and a half years later, on 15 January 2008, the Kyiv Court of Appeal, sitting as a cassation court, rejected the applicant’s appeal against the decisions of 8 April and 26   August 2005 for lack of evidence of breaches of the law. 18.     The above judicial decisions were enforced, and the impugned article was removed from the newspaper’s website on an unspecified date, but no later than 18 August 2005. Subsequent publication 19.     On 28 March 2005 A., the Head of the Donetsk Commercial Court of Appeal, and B., a former Deputy Head of the Donetsk Regional Commercial [1] Court, sent a letter to the chief editor of Dzerkalo Tyzhnya demanding a retraction of the information published in the article of 12   March 2005. They provided a text to be published for that purpose. The   letter was received at the office of the newspaper on 31 March 2005. 20 .     On 23 April 2005, following the interim injunction issued by the Voroshyloskyy District Court of Donetsk (see paragraphs 10-13 above), Dzerkalo Tyzhnya published an article entitled “Black triad: to be continued” (“Чорна трійка: далі буде”) indicating A. and B. as the authors of the letter requesting the retraction. The article, which apparently was a summary of the text of their letter of 28 March 2005, reads as follows: “Every court case is a complicated tangle of antagonistic interests of the parties, and its settlement, irrespective of [the outcome] ... will always leave one of the parties unsatisfied. Even when a party understands the lack of grounds for its appeal against the court decision, very often only the requirement of paying the court and legal fees would stop it from lodging such an appeal. Most people naturally consider all decisions in their favour as lawful and fair, and vice versa. Everyone who has acted as a judge in any dispute knows: the loser will, most probably, regard the decision as unfair and biased. On 12 March 2005 DT [ Dzerkalo Tyzhnya ] published an article by Anatoliy   Yeremenko [entitled] ‘Black triad: nothing else matters in the case’. The article raised very important and relevant problems for modern Ukrainian society. It cites the story of the managing director of [joint-stock company D.], [Ch.], who allegedly discovered unlawful activity [on the part] of judges of the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal. However, many were surprised by [Ch.’s] hard feelings towards the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal. Indeed, given the number of cases won by [joint-stock company D.] and the ‘strength’ of those cases, it should have been more likely for his opponents in those cases to have had reasons [to feel that way]. Take, for example, the decision in case no. 38/251, according to which the claimant [joint-stock company D.] was awarded UAH   262,776.32 ... However, another case – no. 8/55 – is cited as an example in the article. For some unknown reason, the request of [D.’s] managing director under Articles 4 to 6 of the Code of Commercial Procedure of Ukraine to [have] his case examined by a bench of judges being disregarded [was not mentioned in the newspaper article]. We shall explain for those who are not lawyers that these Articles provide for the examination of cases by a bench of judges in a local commercial court where their category and complexity so requires. However, [Ch.] based his request exclusively on the necessity to avoid any pressure on the court by the opposite party (which is not a ground for allowing the examination of the case by a bench of judges). Therefore, if we follow the letter of the law, the court should have rejected [Ch.’s] request as unlawful. However, having taken into consideration the category of the case and the extensive number of circumstances to be examined, the court allowed his request. It follows that the claimant is either unable to understand the text of the law (but takes the liberty to criticise court decisions), or he consciously provoked the court to reject the request in order to have an excuse to complain later about the court’s bias. But, despite the positive decision about the composition of the court in case no.   8/55, [Ch.] asserts that ‘then, in spite of [any] existing procedure, the case is “distributed” to the right judge’. It is easy to remark that such a conclusion contradicts the facts, as well as [the conclusion] that ‘the case is always decided in the client’s favour’, and that there is a so-called ‘black triad’ in the court of appeal. Even more offensive is his final conclusion that ‘they are all tarred with the same brush’. The only lawful way to receive a decision in your favour is to act within the law and to provide sufficient arguments and valid evidence. But some (it is unlikely that they could be called law-abiding citizens) stop at nothing. If the end justifies the means, why not try all of them? The easiest (from a practical point of view, but – we emphasise – not effective and the least ethical) way to convince the court to adopt the ‘required’ decision is to issue a warning in a manner akin to: it is better not to mess with me. By manipulating public opinion, such people try to influence the decisions of public servants, including judges. Indeed, hardly anybody would wish to be associated with the ‘black triad’. Currently the Donetsk Regional Commercial Court is examining the case in which [D.] is one of the parties. So, is the tragical farce of [Ch.] not an attempt to scare the court and to influence its future judgment? Suggesting [that] the ‘black triad’ article could be continued with the family names of all the judges with firm beliefs, and they could later try to prove their integrity publicly. It is well known: the higher a person’s social status, the more society is inclined towards believing in the most absurd gossip about them, so they have to prove their innocence. Therefore, the negative evaluation of the functioning of the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal was given, in the absence of any merit. In particular, there is no reason to believe that there is an organised group involved in unlawful activity operating in the above-mentioned courts. There is no practice of assisting interested clients in [obtaining] ‘positive decision[s]’ in ‘case[s] that will clearly lose’ in the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal. Furthermore, the employees of these courts never recommend particular law firms. It is also untrue that, despite any existing procedure, the cases are given to the ‘right judge’ in order to deliver a decision in the case in favour of the client. The court does not and cannot have ‘clients’, and decisions in the cases mentioned in the articles were taken after impartial examination of all the circumstances of the cases and the evidence submitted by the parties. There are no grounds to conclude that most people who went through the Donetsk Regional Commercial Court and the Donetsk Commercial Court of Appeal gave up and lost their faith in justice, and that they do not apply anywhere else.” 21.     On 12 May 2005 the claimants sent another letter to the chief editor of Dzerkalo Tyzhnya demanding that the newspaper print a retraction, stressing that their previous request had not been addressed adequately since the publication had been printed without a mention in the title of the word “retraction” and that it had contained only summarised elements of their letter of 28 March 2005. 22.     On 23 May 2005 the chief editor of Dzerkalo Tyzhnya replied that the above demand was groundless before the examination of the respective claim by the courts and the pronouncement of the respective judgment. Defamation proceedings 23 .     On 18 April and 18 August 2005, the same claimants (see paragraph   10 above) lodged defamation claims against the applicant, Ch. and the editorial board of Dzerkalo Tyzhnya . They claimed that their professional reputation, honour and dignity had been damaged by the article in question. According to them, the statements contained in the article had undermined the authority of the judiciary. In their updated claim, the judges asked the court to recognise the following statements as defamatory: –     “there was an organised group operating in the Donetsk Regional Commercial Court and in the Donetsk Commercial Court of Appeal”; –     that Ch. had discovered “a detailed mode of operation of the whole scheme”; –     “the pressure of the system”; –     “an interested client comes knocking and asks for assistance with a case that will clearly lose. They recommend that he goes to law firm [L.]. Then   the contract is concluded with the client, the money is transferred, and the claim is prepared. Then, despite [any] existing procedure, the case is ‘distributed’ to the right judge. After that, the case is always decided in the client’s favour”; –     “If another party lodges an appeal, a so-called ‘black triad’ exists, which embraces the principle [that] ‘nothing else matters in the case’”; and –     “they are all tarred with the same brush”. They further asked the court to order the editorial board of Dzerkalo   Tyzhnya to publish a retraction of the above statements, and to order the applicant and Ch. to pay 10,000 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage to each claimant. They noted that the newspaper had partly restored their rights by allowing them to exercise their right to reply to the allegations in the impugned article and by removing the article from their website. 24 .     In his response to the claim, the applicant insisted that the statements concerned contained information important to the general public and the sources of the information were Ch. and Ch.’s letter to the parliamentary sub ‑ committee. He further noted that he had duly verified that the letter had indeed been submitted to Parliament, and that it was a ground for a related inquiry by the law-enforcement services. At the same time, he stated that Ch.’s remarks were in line with the results of his own journalistic investigations in respect of cases nos. 27/37 and 8/55, which were based on the case files of those cases. The applicant considered that, since he had received the information from “an official” of an organisation, he was relieved from liability for published material by virtue of section 42(2) of the Press Act. Lastly, the applicant noted that the claimants’ names had never been mentioned in the article and that there were at least twelve other judges who had examined the case in issue in the Donetsk Regional Commercial Court, but who had not lodged a defamation claim. He also referred to his previous article of 29 May 2004 in which A. and C. had been named, but against which they had never initiated defamation proceedings. In support of his arguments, the applicant attached, inter alia , Ch.’s letter to the parliamentary sub-committee, the case files of several cases he had examined in the context of his investigation, including case no.   27/37, and his previous articles on the topic in question. 25.     On an unspecified date, the applicant and Ch. also lodged counterclaims. The applicant stated that before initiating defamation proceedings and requesting the interim injunction, A., C., D., E., B., and F. had illegally obtained his personal information, including his name and contact details. He asked the court to find such actions unlawful. Ch. asked the court to determine that the information contained in the judges’ letter to the newspaper, published on 23 April 2005 (see paragraph 20 above), was untrue. 26 .     On 20 October 2005 the Petrovskyy Local Court examined the case on the merits. Having analysed the eighth and ninth paragraphs of the article in question, the court allowed the judges’ claim in part. The court concluded that the statements contained in those paragraphs were defamatory (“had presented a distorted view of reality and were not based on actual facts”) and their publication had resulted in non-pecuniary damage being inflicted on all the claimants. 27 .     The relevant parts of the court’s judgment read as follows: “[T]he information contained in the relevant paragraphs of the article did not correspond to reality and tarnished the honour, dignity and reputation of the claimants in view of the following. ... At the court hearing the [applicant] confirmed that in the eighth and ninth paragraphs of the article he had used information provided by Ch., including the letter to the parliamentary sub-committee, along with [Ch’s] succinct commentary which disclosed elements of an interview. [2] The respondent Ch. confirmed that the author had used the information provided by him in the eighth and ninth paragraphs of the impugned article. Upon analysis of the ninth paragraph of the article, it is established that it was published in the form of an interview. Pursuant to section 13 of the Copyright and Related Rights Act, the copyright of a recorded interview is to be regarded as co-authorship. The interviewee and the interviewer are co-authors of the interview. The court considers that [the applicant] and Ch. are co-authors of the article ... [In the letter addressed to the head of the parliamentary sub-commission on combating organised crime and corruption] Ch. stated that an organised criminal group was operating in the Donetsk Regional Commercial Court and the Donetsk Regional Court of Appeal which, on demand, provided judgments and rulings required by clients. [He] named the members of the group and described how it operated. ... Ch. also sent this letter to the State Security Service and was informed that his allegations were being verified. ... In response to an enquiry of the Donetsk Commercial Court of Appeal, [on 22   April 2005] the Administration of the Security Service of Ukraine in the Donetsk Region reported that upon examination [перевірки] of Ch.’s allegations, no proof of   the existence and activities of such an organised criminal group in the [above-mentioned courts] had been found. Therefore, [the relevant statements] published in the eighth paragraph of the article had not been proved and, accordingly, [they] were untrue. ... The article referred to Ch.’s letter to ..., in which he directly mentioned a criminal organisation that existed in the [above-mentioned] courts. Even though the article did not reproduce the content of that letter, the statements in the eighth and ninth paragraphs suggested to the reader that the existence of a ‘criminal group’ was being discussed. In their description of the procedure for distributing   and examining cases,   the co ‑ authors of the article accused the [judges] of the above courts not only of violating bylaws, but also of what could be interpreted as abuse of office and a miscarriage of justice, both being criminal offences. ... the expression ‘organised group’ was used in the article in the criminal sense and was associated with a criminal offence committed by an organised group. Pursuant to Article 62 of the Constitution of Ukraine a person is presumed innocent of committing a crime until their guilt is proved in accordance with the law and established by a verdict of a court. No such verdict has been delivered in respect of the claimants by any domestic court and therefore [those statements] were defamatory. At the same time the court cannot take into consideration the defendants’ arguments according to which at the court hearing they had provided evidence in support of their statement as to the existence of a special procedure for examining cases in view of the following. As noted above, the statements as to the existence of a special procedure for examining cases in the above-mentioned courts constitute an accusation that a crime has been committed, which ... must be proved by certain means. In view of Article 62 of the Constitution as to the presumption of innocence, the above statements can be proved only by a verdict of a court, which does not exist in respect of the claimants. ... Section 42 of the Press Act provides that a journalist is exempted from liability for the publication of material that is untrue, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if the information is contained in a reply to a request for access to official documents and to a request for written or oral information, provided in accordance with the Information Act. Section 32 of the Information Act provides that a request for access to official documents is a request addressed to relevant State authorities or its officials in order to examine the official documents. Since joint-stock company D. was not a State body and its managing director, Ch., was not an official of a State authority, his letter could not be considered an official document within the meaning of section 42 of the Press Act and section 32 of the   Information Act. Under section 47-1 of the Information Act ...value judgments are not subject to retraction or proof of veracity. ... The information in the eighth and ninth paragraphs of the article, particularly the following statements, can be interpreted as containing factual information and thus they are not value judgments: ‘Ch. came to the conclusion that there was an organised group operating in the Donetsk Regional Commercial Court and in the Donetsk Commercial Court of Appeal’, ‘an interested client comes knocking and asks for assistance with a case that will clearly lose. They recommend that he goes to the law firm [L.] Then the contract is concluded with the client, the money is transferred, and the statement of claim is prepared. Then, in spite of [any] existing procedure, the case is “distributed” to the right judge. After that, the case is always decided in the client’s favour’; ‘If another party lodges an appeal, a so-called “black triad” exists, which embraces the principle [that] “nothing else matters in the case”. ... By virtue of Article 277 of the CCU one of the elements of the offence is dissemination of information about a person which would enable an observer to deduce that it concerns a specific identifiable individual or, at least, that the person belongs to a group of people to whom such information pertains. Indication of the person’s name is not obligatory: for information to be considered as concerning a specific person if he or she is identifiable on the basis of other elements. The claimants A., C., D. and E. are judges at the Donetsk Commercial Court of Appeal, and B. and F. - at the Donetsk Regional Commercial Court. In addition, A. is a Head of the Donetsk Commercial Court of Appeal and B. used to be a Deputy Head of the Donetsk Regional Commercial Court. In the article the authors assert the existence of an organised group in the [above ‑ mentioned] courts, which has been found by this court to be inaccurate/false. This fact alone tarnishes the dignity, honour and reputation of the managing officials of such courts, namely A. and B. As proof of the existence of an organised group in the above-mentioned courts the authors refer to case no. 8/55. Having examined the case file of the above case, the court established that B. assigned F. to examine case no. 8/55; F. was a presiding judge at the first-instance court’s examination of this case; and E., C. and D. further examined this case in the court of appeal. Thus, as a result of the publication of untrue information, all of the above judges sustained non-pecuniary damage, including B., who at the material time was Deputy Head of the Donetsk Regional Commercial Court and was managing the court division comprising the judges who had examined the case at first instance. A., the Head of Donetsk Commercial Court of Appeal, who ... is responsible for the organisational management of the court where the case in issue was examined on appeal, also sustained non-pecuniary damage. The court dismisses the respondents’ arguments concerning the fact that the names of the claimants had not been mentioned, since the co-authors of the article provided sufficient information to identify them. In addition, the information on judges examining the domestic cases was not restricted, the copies of the court decisions had been sent to the parties, and information about these judges could be known to an unlimited/unrestricted number of persons.” 28 .     When setting a compensation to be paid to the claimants by the applicant and Ch., the court noted that the applicant was guilty to a lesser degree since it was Ch. who had provided him with the information. However, the applicant had failed to verify the information, and had thus failed in his professional duties as set out in section 26 of the Press Act. 29.     The court ordered the editorial board of Dzerkalo Tyzhnya to publish a retraction of the statements contained in the eighth and ninth paragraphs of the article, and the applicant to pay UAH 333 in respect of non-pecuniary damage to each of the claimants, plus their legal (UAH 333 per claimant) and court fees (UAH 100 per claimant). In total, the applicant was ordered to pay the equivalent of 331 euros (EUR) in respect of non-pecuniary damage and EUR 430.51 in respect of legal and court fees. Ch. was ordered to pay UAH   1,000 in respect of non-pecuniary damage per claimant, plus legal and court fees. Finally, the court dismissed the applicant’s and Ch.’s counterclaims as unsubstantiated. 30.     The applicant appealed against the judgment of 20 October 2005 of the Petrovskyy Local Court, relying on the following arguments: (i) the court had failed to substantiate the existence of the non-pecuniary damage by not giving concrete reasons for the effect the article had had on the claimants and their psychological health; (ii) the court had failed to make a distinction between the facts and “value judgments”. In this respect the applicant noted that the phrase “tarred with the same brush” was clearly a “value judgment”, yet it had not been examined by the court separately and had been found defamatory as a part of the whole text; (iii) the material in the case files of case no. 8/55 and a number of other cases were sufficient to conclude that the statements published in the article were true; (iv) the court had failed to examine the existence of mens rea in the applicant’s actions; (v) the court had gone beyond what had been claimed in the co