This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 47

 

 REPUTATION DAMAGE - The case of Putistin v. Ukraine is important because it accepts that under certain conditions the damage to the reputation of a deceased person can affect the private life of that person’s surviving family members. The judgment makes very clear, however, that such a situation will occur only in relatively exceptional circumstances.

The case concerned an article written about the legendary “Death Match” between Ukrainian footballers and members of the German Luftwaffe in 1942 in Kyiv. (About the background of the match read inter alia David Horovitz: When the Luftwaffe was grounded — on a soccer field - 2012)

"The so-called “Death Match” took place 70 years ago this month, a year after the Nazis captured Kiev, and pitted ex-Soviet soldiers, many of whom had played professionally for local side Dynamo Kiev, against a German Luftwaffe (air force) team. Before the first game, the Germans lift their arms and shout “Heil Hitler,” but the Ukrainians, in Binet’s telling, rather than following suit, bang their chests and shout “long live physical culture” — a slogan with Soviet connotations that “sends the crowd wild.” A Kiev player almost immediately has his leg broken, and the team is down to 10 men. Yet after falling a goal behind, the Kiev players score, and then they take a 2-1 lead at half-time.
At this point, General Eberhardt, the German commandant of Kiev, enters the dressing room, tells the players that they have “played an excellent game,” but warns them they had better lose in the second half. “You really must! The Luftwaffe team has never lost before, certainly not in any of the occupied territories. This is an order! If you do not lose, you will be executed!” The Kiev players listen in silence, make an unspoken decision to ignore the warning, and wind up winning 5-1.
The replay comes three days later — by which time the Luftwaffe have brought in professional reinforcements. Now SS troops are patrolling the packed Kiev stadium. The German score first, again … but the Kiev team ultimately wins, again — by 5-3 this time. “At the final whistle, the Ukrainian supporters are ecstatic but the players look pale. The pitch is invaded, and in the confusion three Ukrainian players disappear; they will survive the war. The rest of the team is arrested and four of them are sent immediately to Babi Yar” — where the Nazis had murdered 33,771 Jews the previous September — “where they are executed. On his knees at the edge of the ditch, Nikolai Trusevich — the captain and goalkeeper — manages to yell, before getting a bullet in the back of the neck: “Communist sport will never die!” The other players are murdered one by one. Today, there is a monument to them in front of Dynamo’s stadium.” 

The applicant alleged that an article in the newspaper Komsomolska Pravda in 2001 named “The Truth about the Death Match” (original title: “Правда о Матче Смерти”) discredited his father, who had played in the game, as it suggested that he had been a collaborator. He claimed that, by rejecting his requests for the article to be rectified, the Ukrainian courts had failed to protect his and his family’s reputation. The Court held  that Ukrainian courts were justified in not ordering rectification of article about “Death match” in 1942 between Ukrainian football team and German Luftwaffe:

“36.  At the outset the Court notes that the article in issue was one of a series of reports in the Kyiv newspapers about the events of the “Death Match”. The events which the article described were of general interest to the Ukrainian readers’ community, which the newspaper addressed. In particular, the article concerned events which occurred during World War II and, more specifically, historical heritage of a famous football club and a football match in which Dynamo Kyiv players were involved. (-)
37.  The Court notes that the applicant alleged that the article seriously damaged his “family’s reputation” as it could have been assumed from the content of the article that his late father had worked for the police and collaborated with the Gestapo. However, the Court notes that the conclusion of the Obolonskyy District Court of Kyiv given on 25 December 2001 was that the applicant “was not a person who was directly affected by the publication” (see paragraph 12 above). The Court agrees with this conclusion. (-)
38.  The Court can accept that the applicant was affected by the article, but only in an indirect manner, in the sense that a reader who knew that the applicant’s father’s name was on the 1942 poster might draw adverse conclusions about his father. The level of impact was thus quite remote.
39.  The domestic courts were obliged to have regard to the rights of the newspaper and the journalist and had to balance these against the rights of the applicant. The Court notes that whilst the article did not purport to contribute directly to an historical debate, it nevertheless constituted a form of participation in the cultural life of Ukraine in that it informed the public of a proposed film on an historical subject. It was neither provocative nor sensationalist. Against the newspaper’s right to freedom of expression, the remoteness of the interference with the applicant’s Article 8 rights had to be weighed.
40.  In these circumstances, that is, where the applicant’s Article 8 rights were marginally affected and only in an indirect manner by an article which reproduced statements by the maker of a proposed historical film, the Court considers that the domestic courts did not fail to strike an appropriate balance between the applicant’s rights and those of the newspaper and the journalist.”

ALSO COURTS SHOULD STICK TO THE RULES - 

In the case of Avdić and Others v. Bosnia and Herzegovina, the Court held that there had been a violation of Article 6 § 1 of the Convention because  the Constitutional Court of Bosnia and Herzegovina left the applicant without any final determination of his case and, accordingly, restricted the very essence of his right of access to a court. 

The Constitutional Court is composed of nine members. According to the Constitution, a majority of all the members of the court, i.e. 5, shall constitute a quorum. The Constitution is silent on how decisions are to be taken, and in particular on whether decisions of the Constitutional Court are to be taken by simple or by qualified majority. The Constitution also provides that the Constitutional Court shall adopt its own rules of court. The - impugned - rules of that court state that, when fewer than nine judges hear an appeal, an aspect of the appeal will be rejected if at least five judges cannot agree upon it. In his concurring opinion judge De Gaetano explains the problem:

"The rules of court, which were adopted by the Constitutional Court itself and which are therefore, by their very nature, subsidiary legislation, while providing that the plenary court should take decisions by a majority of all its members, introduced a qualified majority in the case of any formation other than the full nine. In other words, the smaller the composition of the Constitutional Court (five, six, seven or eight members), the more difficult it would be for an applicant to have the case resolved in his favour. No provision was made in the said rules in the event of a tie when the formation was an even one. Moreover, as if this were not enough, when the qualified majority was not attained, the rules provided that “it shall be considered that the decision is taken to reject [the appeal]” (see paragraph 18). In other words, the appeal is “deemed to have been” rejected even though, in reality, there was no actual determination on the merits (paragraph 36). It was thus sufficient for a judge to fail to turn up for deliberations because of, say, illness, for the procedural hurdle to be put in place."

(By the way Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (§ 34 of the judgment).) 

The Court held that:

"While the Constitutional Court took formal decisions on the applicants’ appeals, it effectively declined to decide on their admissibility and/or merits. The impugned decisions contained reasons both for and against the finding of a violation and the only reason why the applicants’ appeals were rejected was the court’s failure to reach a majority on any of the issues which would determine the applicants’ civil rights and obligations. In other words, there was no majority for either accepting or rejecting their appeals. When there is no real “determination” of civil rights and obligations, the right of access to court remains illusory."

In view of the above, the Court held that there had been a violation of Article 6 § 1 of the Convention.

 Courtesy Press Service of the European Court of Human Rights in Strasbourg