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15.02.2006

A European Judgment from the Desnyanskiy Dstrict Court in Chernihiv

   

From “Prava Ludyny” Editorial Board: “Koval’s case” is the case involving torture by the police.  More details about the case can be found in our bulletin for November 2005.

On 30 December 2005 a judge of the Desnyanskiy Dstrict Court in Chernihiv issued a judgment in the claim brought by the head of the Chernihiv town police department Eduard Alyokhin against pensioner Mykhaylo Koval. One can say without exaggeration that this is a high-quality judgment from the legal point of view: it is fair in essence and perfect in substance and form. After the analysis of the evidence, the court refused to satisfy the claim of Eduard Alyokhin, referring not only to domestic laws, but also to international legal acts, in particular, resolutions of the European Court of Human Rights and the UNO Convention against torture, which form part of Ukrainian legislation. Mykhaylo Koval was represented by Oleksandr Trofimov, a lawyer of the Chernihiv Civic Committee for the Protection of Human Rights.

“Koval’s case” is a case involving torture in police custody. It has already gone on for five years. The case is closed from time to time and opened again. At the present time the pre-trial investigation has not been concluded. During this time support has been offered to Mykhaylo Koval not only by Ukrainian human rights organizations, but also by international organizations, in particular, the international non-governmental organization “Amnesty International”.

At an “Amnesty International” press conference which was held on 27 September 2005 in Kyiv, the organization’s annual report on torture in Ukraine was made public. Mykhaylo Koval was invited to take part in this press conference and gave interviews to several nationwide television channels.  Police colonel Eduard Alyokhin, the present head of the Chernihiv town police department, took offence at statements of M. Koval and brought a suit against him.

Referring to norms of domestic and international legislation, the court explained that according to Article 1 of the UNO Convention against torture, Mr. Koval had sufficient grounds for considering that he had been a victim of torture. In the Judgement, the court quoted Koval’s explanations about his interview given within the framework of international discussion on the use of torture by policemen, where he had expressed categorical aversion to such practice.

We applaud the High Court for professionalism, fairness and independence demonstrated by this judgement which has upheld the individual’s right to his or her own opinion. The decision has been taken with the application of the three-stage test, when the public importance of the considered question is higher than the probable unpleasant consequences for an individual. Ultimately, this decision teaches to distinguish between “evaluative judgments” and “statement about a fact” on the basis of the adduced grounds.

We would like to believe that the logic of taking decisions by the European Court of human rights has already been mastered by the majority of judges of the Chernihiv region, at least by the judges who, over 2 years, have taken part in the seminars “Introduction of the norms of European law in legal proceedings in Ukraine”. These seminars were held by the Appeal court of the Chernihiv region jointly with the Chernihiv Civic Committee for the Protection of Human Rights.

In what follows we are quoting the text of the Judgement.

Desnyanskiy Dstrict Court in Chernihiv

JUDGEMENT

In the name of Ukraine

30 December 2005, Chernihiv

The Desnyanskiy Dstrict Court in Chernihiv consisting of: the chairman – Judge V. Koverznev, secretary O. Balaba,

with the participation of: advocate L. Pidgorna, defendant, his representative advocate O. Trofimov, representative of the second defendant O. Bazika,

has considered in an open court hearing the civil case based on the claim of Eduard Alyokhin against Mykhaylo Koval and the TV studio “Sluzhba informatsii” about protection of honour, dignity and business reputation and

has established:

On 19 October 2005 the claimant turned to the court with a claim against M. Koval and the TV company “NTN”, and asked it:

1) To declare the information about alleged torture of the defendant, which was made public by him on 27 September 2005 during the broadcast by the TV company “NTN” of the TV-feature “Svidok”, as inauthentic and defaming honour, dignity and business reputation;

2) To oblige the defendants to refute the defamatory information by means most close to its distribution, by publication of the judgement part of  the court decision in the same feature or in the series of features at the same time not later than within a month after this judgement comes into effect;

In substantiation of the suit the plaintiff pointed out that on 27 September 2005, in the interview to the journalists of the TV company NTN, the defendant stated that he and his son had been beaten by police officers and called the claimant his torturer. The latter believes that the information spread by the defendant is negative and defamatory of his honour, dignity and business reputation.

At the preliminary court sitting, with the approbation of the parties, the TV studio “Sluzhba informatsii” was named as the second defendant, since the TV company “NTN” was its structural subunit without the status of legal entity and could not take part in the case.

The representative of the plaintiff supported the claim and insisted on its satisfaction.

The defendant rejected the claim and explained that he had given the interview in the framework of international discussion on the use of torture by police officers. Regarding himself as a victim, he expressed categorical aversion to this practice. In talking about what had happened to him, he wanted to turn public attention to the inadmissibility of the holding of state posts by individuals who cover up torture, thus he expressed a value judgment stating that the claimant had been his torturer. Being questioned as a witness, the defendant testified that on 14 August 2001 the plaintiff personally took part in his beating in the building of the Chernihiv town police station.

The representative of the second defendant also rejected the claim and asked that it not be satisfied.

The defendant’s son D. Koval testified that on 14 August 2001, in the building of the Chernihiv town police station, several police officers, in particular the plaintiff, had beaten him and the defendant, inflicting numerous bodily injuries.

The witnesses V. Nazarenko, V. Perepecha and N. Mironova gave similar evidence during questioning.

After listening to the testimony of the parties, the questioning of witnesses and analysis of case material, the court came to the conclusion that the suit should not be satisfied for the following reasons.

On 27 September 2005, at 19:00 and at 00:15, during the broadcasting by the second defendant of the TV-feature “Svidok”, the problem was discussed of the use made by officers of law enforcement bodies of torture in relation to people detained. In his interview the defendant sad that he and his son had been tortured by officers of the above-mentioned police station. As a result of the beating, he suffered concussion and numerous bodily injuries, and his son lost his hearing. At that the defendant pointed out that his torturer had been appointed to the post of head of the police department.

Everything said above is confirmed by the records of the interview (page 5 of the case materials), which are not refuted by the defendants.

Since prosecutor’s office of Chernihiv has started a criminal case No. 75/1665 in relation to the inflicting of bodily injuries to the defendant and his son in compliance with Article 165 part 2 of the Criminal Code of Ukraine (version of 1960), and a pre-trial investigation still underway (page 35 of the materials), the court considers that it is not expedient to give a legal assessment of the testimony of witnesses, because it could negatively influence the course of investigation.

At the same time, the analyzed evidence, in particular: appeals of M. Koval, addressed to the head of the Chernihiv regional department of the Ministry of Interior of 29 March 2004, to the prosecutor’s office of Chernihiv of 20 February 2002 and to the prosecutor of the Chernihiv region of 4 April 2003 (pages 31-33), concerning the personal participation of E. Alyokhin in the beating of Koval, which happened on 14 August 2001 in the building of the Chernihiv town police station, and testimonies of witnesses, reviewed as a whole, suggest that, according to Article 1 of the UNO Convention against torture and other cruel, inhumane or disgracing treatment and punishment of 10 December 1984, the defendant has sufficient reasons to regard himself as a victim of torture.

According to Article 10 of the European Convention for the Protection of Human Rghts and Fundamental Freedoms of 4 November 1950 (the Convention, in what follows), everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

In its decision on the case “Handysite vs. United Kingdom” of 2 December 1976 the European Court of Human Rights (the Court, in what follows) stated: “The right to spread information and ideas concerns not only information and ideas that are regarded as positive or are considered as inoffensive and insignificant, but also those that offend and arouse anxiety. These are the demands of pluralism, tolerance and breadth of views, without which the existence of democratic society is impossible”.

In its practices the Court distinguishes between facts and evaluative judgments, since a fact can be proved, and the veracity of an evaluative judgment is not liable to proof. It is impossible to fulfil the demand to prove the veracity of a critical statement; besides, such demand violates the freedom of expression of one’s own opinion, which is a fundamental part of the right protected by Article 10 of the Convention (see the Court decision in the case “Linges vs. Austria” of 18 July 1968).

According to Article 47-1 of the Law of Ukraine “On information”, nobody can be held liable for the expression of value judgments. At that the Law states that value judgments are statements that do not contain factual data.

Since the opinions expressed by the defendant do not contain specific data, they are considered as value judgements, which exclude their refutation and bringing the defendants to answer.

Being guided by Articles 10, 208, 209, 212-215 and 294 of the Civil Procedure Code of Ukraine, Article 1 of the UNO Convention against torture and other cruel, inhumane or disgracing treatment and punishment, Article 10 of the European Convention on protection of human rights and fundamental freedoms, Article 47-1 of the Law of Ukraine “On information”, decision of the European Court in the case “Handysite vs. United Kingdom” of 2 December 1976 and decision of the European Court in the case “Linges vs. Austria” of 18 July 1968, the court

has resolved:

To turn down the claim of Eduard Alyokhin against Mykhaylo Koval and the TV studio “Sluzhba informatsii” concerning protection of honour, dignity and business reputation.

Appeal against the court decision can be lodged to the Appeal court of the Chernihiv region. Notice of appeal against the decision should be submitted within 10 days of the day of its pronouncement, and the appeal complaint – within 20 days after handing of the application. The appeal complaint can be lodged without the advance application about the appeal, if it is submitted within the term established for handing in of the application.

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