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15.12.2003

The Constitutional Court interpreted part 1 Article 7 of the Civil Code of the UkrSSR

   

The Constitutional Court received the complaint from citizen V. Serdiuk, who communicated that his appeal on the illegal actions of an inspector of the state tax administration of Poltava was regarded by the Zhovtnevy district court of Poltava as spreading the untrue information that discredited honor, dignity and business reputation of the officer of the tax inspection. V. Serdiuk substantiates the need of the official interpretation by the fact that this clause is applied by the Ukrainian courts in the ambiguous way, and he believes that his rights were abused. The editorial board of “Prava ludyny” reckons that the decision of the Constitutional Court is extremely important, that it takes into account not only the Ukrainian law, but also the decisions of the European Court, and it may be used for human rights protection. That is why we want to present the entire text of this decision.

“PL” editorial board


IN THE NAME OF UKRAINE

THE DECISION OF THE CONSTITUTIONAL COURT OF UKRAINE

The decision of the Constitutional Court of Ukraine on the constitutional appeal of citizen Valeriy Serdiuk about the official interpretation of part 1 Article 7 of the Civil Code of UkrSSR (spreading the information).

Kyiv Case No. 1-9/2003 10 April 2003 No. 8-рп/2003

The Constitutional Court of Ukraine consisting of judges of the Constitutional Court of Ukraine:

Mykola Selivon – the chairman, Pavel Evgrafov, Mykhaylo Kostytsky – judge-speaker, Ludmila Malinnikova, Oleksandr Mironenko, Valeriy Pshenichny, Vitaliy Rozenko, Mykola Savenko, Viktor Skomorokha, Ivan Timchenko, Volodymir Tykhiy, Pavel Tkachuk, Ludmila Chubar and Volodymir Shapoval,

considered at the plenary sitting the case on the official interpretation of the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) “spreading the information”.

The consideration of the case according to Articles 42 and 43 of the Law of Ukraine “On the Constitutional Court of Ukraine” was caused by the constitutional appeal of citizen of Ukraine Valeriy Serdiuk.

According to Article 94 of the Law of Ukraine “On the Constitutional Court of Ukraine” (422/96-ВР), the reason for the consideration of the case is the ambiguous application by the Ukrainian courts of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) concerning the question brought up in the constitutional appeal.

Having listened to judge-speaker M. Kostytsky and after the investigation of the materials of the case the Constitutional Court of Ukraine

established:

1. Citizen Valeriy Serdiuk turned to the Constitutional Court of Ukraine with the request on the official interpretation of the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) (the Civil Code, in what follows) “spreading the information”. The applicant substantiated the practical need of the official interpretation with the fact of the ambiguous application of this provision by the Ukrainian courts, which, in the opinion of V. Serdiuk, resulted in violation of his constitutional rights.

The subject of the right for constitutional appeals points out that his appeal on the illegal actions of an inspector of the state tax administration of Poltava handed to the Poltava oblast Tax Administration was regarded by the Zhovtnevy district court of Poltava as spreading the untrue information that discredited honor, dignity and business reputation of the officer of the tax inspection. The court obliged V. Serdiuk to refute this information by sending the application to the corresponding department of the tax administration and to recompense the moral damage inflicted to the state officer.

The panel of judges on civil cases of the Poltava oblast court and the panel of judges of the court chamber on civil cases of the Supreme Court of Ukraine rejected the cassation complaint of V. Serdiuk against the decision of the district court of Poltava.

The claimant appended to the appeal the excerpt from the resolution of the Plenum of the Supreme Court of Ukraine of 26 December 1997 (No. 0024700-97) on the claim of the family of B. against citizen L. about the protection of honor, dignity and business reputation and the compensation of moral damage, as well as the excerpt from the resolution of the presidium of the Zhytomir oblast court of 2 June 2000 on the claim of citizen S. against citizen M. about the protection of honor, dignity and the compensation of moral damage, which claims were considered with other legal consequences.

2. In his response to the request of the Constitutional Court of Ukraine the head of the Supreme Court of Ukraine points out that a complaint of a person handed to a law-enforcing organ against the illegal actions of an officer of this organ connected with the fulfillment of his service duties or authorities is regarded as spreading the information about this officer. Yet, this appeal may not be a basis for the civil responsibility of the applicant in the accordance with Article 7 of the Civil Code (1540-06), even if this information is untrue. The information handed to a law-enforcing organ about the actions of its officer connected with the fulfillment of his service duties, but not connected with the realization of his authorities, is regarded as the information about the behavior of this officer, but not as spreading the information in the conception of Article 7 of the Civil Code independently of the veracity of this information. An applicant may be brought to responsibility after Article 7 of the Civil Code (1540-06) only if this information concerns the behavior (activity or passivity) of a law-enforcing officer, assessment of his personality (personal features) in the presence of all circumstances envisaged by this article.

Besides, the above-mentioned resolution of the Plenum of the Supreme Court of Ukraine of 26 December 1997 (No. 0024700-97) reads that, according to the substance of Article 7 of the Civil Code (1540-06), “the appeals of citizens to law-enforcing organs on the protection of their rights from the illegal actions of other persons, including the evidence of a witness during the preliminary investigation, may not be regarded as spreading the untrue information”.

The State tax administration of Ukraine reckons that, in the context of Article 7 of the Civil Code (1540-06), citizens’ complaints against the illegal actions of the officers of law-enforcing organs handed to these organs in the accordance to the procedure stipulated by the Law of Ukraine “On citizens’ appeals” (393/96-ВР) may not be regarded as spreading the information about these officers and may not be a ground for civil responsibility of the citizens.

The responses of V. Koretskiy institute of the state and law, G. Skovoroda institute of philosophy and the Institute of political and ethnic-national research of the National Academy of Sciences of Ukraine also contain the similar conclusions.

3. Part 1 of Article 7 of the Civil Code (1540-06) states that “citizens and organizations have the right to demand through court the refutation of untrue or incorrectly stated information, which discredits their honor, dignity or business reputation or inflict damage to their interests, if the person, who spreads this information, cannot prove the authenticity of the information”. According to the Constitution of Ukraine (254к/96-ВР), everybody has the right to direct individual or collective written complaints or to turn personally to the organs of state power, organs of local self-rule and state officials, who must consider the complaint and give the answer in the term stipulated by law (Article 40); everybody has the right to appeal to court against the decisions, activities or passivity of the organs of state power, organs of local self-rule and state officials (part 2 Article 55).

The question of practical realization of these rights by citizens are regulated, in particular, by the Law of Ukraine “On citizens’ appeals” (393/96-ВР), which guarantees to citizens the opportunity to take part in state and public affairs, to exert influence on the improvement of the work of the organs of state power and local self-rule, enterprises, establishments and organizations independently of the form of property, to defend their rights and legal interests and to restore their rights in the case of violation by stating their propositions (remarks), appeals (petitions) and complaints in written or oral form.

According to part 5 Article 55 of the Constitution of Ukraine (254к/96-ВР), “everybody has the right to protect his rights and freedoms from violations and illegal infringements in any ways, which are not prohibited by laws”. Besides, Article 4 of the Law of Ukraine “On citizens’ appeals” (393/96-ВР) envisages the reasons, which give the right to citizens to appeal against the decisions, activities or passivity in the sphere of administrative work, including the decisions, activities or passivity of the organs of state tax administration and their officers, which right is also stipulated by the Law of Ukraine “On the state tax administration in Ukraine” (509-12).

Taking into account the above-mentioned arguments, the Constitutional Court of Ukraine believes that the appeals of citizens to law-enforcing organs that contain the information about the non-observance of laws by state officers are handed for checking this information by other state officers empowered to do this, but not with the aim to communicate the information to public or separate citizens. Thus, according to the essence of part 1 of Article 7 of the Civil Code (1540-06), such appeals may not be regarded as spreading the untrue information that discredits honor, dignity and business reputation or inflict damage to the interests of a law-enforcing officer.

The problems connected with the peculiarities of the realization of the citizens’ right for the freedom of expressing the opinions and the criticism of the activities (passivity) of state officers were considered many times by the European court of human rights. Using the provisions of Article 10 of the Convention of human rights and fundamental freedoms (995_004), in the decisions in the cases “Nikula vs. Finland” (980_042 ), ”Janowski vs. Poland”, etc., the Court points out that the ambit of the permitted information concerning state officers may be wider than the ambit of the information on common citizens. So, if a state official acts without the legal grounds, he must be ready for the critical reaction of the public.

At the same time, the presence of the deliberately untrue information in the appeals to law-enforcing organs results in disciplinary, civil, administrative or criminal responsibility according to the Ukrainian laws.

For example, Articles 173-1 and 212-1 of the Administrative Code of Ukraine (80731-10) envisage the administrative responsibility for spreading the untrue rumors that can provoke the panic or disturbance of public order, as well as for communicating the deliberately false information to the organs of registering the acts of civil status.

The Criminal Code of Ukraine (2341-14) envisages the criminal responsibility for spreading the deliberately false information about the preparation of explosion, arson or other actions that can result in death of people or other grave consequences (Article 259), deliberately false information about a committed crime communicated to a court, prosecutor, investigating officer or organ (Article 383), etc.

Besides, Article 27 of the Law of Ukraine “On citizens’ appeals” (393/96-ВР) envisages the recompensing by the applicant of the expenditures connected with the check of the appeals that contain the deliberately false information.

An applicant may be brought to civil responsibility envisaged by Article 7 of the Civil Code (1540-06) as a consequence of spreading false information about personal (family) life of law-enforcing officers.

On the basis of the above-said and according to Articles 147 and 150 of the Constitution of Ukraine (254к/96-ВР), Articles 51, 94 and 95 of the Law of Ukraine “On the Constitutional Court of Ukraine” (422/96-ВР), the Constitutional Court of Ukraine

decided:

1. In the aspect of the constitutional appeal the provision of part 1 Article 7 of the Civil Code of the UkrSSR (1540-06) “spreading the information” must be interpreted in the following way: the information stated in the letters, appeals and complaints to law-enforcing organs by a person, who believes that his/her rights were abused by the officers of this organ during the fulfillment of service duties, may not be regarded as spreading the information that discredits honor, dignity and business reputation or inflicts damage to interests of these officers.

Communication of the deliberately false information in the letters, appeals and complaints to law-enforcing organs entails the responsibility stipulated by the operating laws of Ukraine.

2. The decision of the Constitutional Court of Ukraine is obligatory for the fulfillment on the territory of Ukraine, it is final and may not be appealed.

The decision of the Constitutional Court of Ukraine must be published in “Visnyk Konstitutsionnogo Sudu” (“The Herald of the Constitutional Court of Ukraine”) and in other official editions of Ukraine.

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