Can the State Be a Holder of the Right to Freedom of Expression? The Supreme Court Opens Cassation Proceedings on the Cassation Appeal Filed by Attorneys Yurii Kanikaiev and Dmytro Yagunov
Attorneys Yuriy Kanikaiev and Dmytro Yagunov have raised before the Supreme Court a fundamental question concerning the application of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms in favor of a state institution.
The Supreme Court, sitting as a panel of judges of the First Judicial Chamber of the Civil Cassation Court, has opened cassation proceedings in a civil case concerning the retraction of inaccurate information. In deciding to open the proceedings, the panel of judges found that the applicant had raised a question on which there is no existing conclusion of the Supreme Court regarding the application of a rule of law in similar legal relations «…there is no conclusion of the Supreme Court on the question of the application of a rule of law in similar legal relations, namely: whether a state institution (a state body, its “emanation”) may be a bearer of the right to freedom of expression under Article 10 of the Convention for the Protection of Human Rights and enjoy the protection of that article in a dispute brought by a natural person seeking retraction of inaccurate information that violates that person’s rights under Article 8 of the Convention».
In other words, the courts of previous instances effectively recognized in favor of a state institution – a party to a dispute with a natural person – the right to freedom of expression guaranteed by Article 10 of the Convention, setting it against that natural person’s right to respect for private life and business reputation under Article 8 of the Convention. The Supreme Court found that such an approach raises a question that has not yet received a final answer in its case law, and opened cassation proceedings.
The question is of significance extending far beyond the particular dispute. It concerns an indefinite circle of persons who may potentially find themselves in a situation where a state body, institution, or organization, entering into conflict with a private individual over information disseminated about that individual, attempts to defend itself by invoking a Convention right that, by the very nature of the Convention for the Protection of Human Rights and Fundamental Freedoms, belongs to a human being, not to the state.
WHAT THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS SAYS
Article 34 of the Convention defines the circle of subjects entitled to apply to the Strasbourg Court: a person, a non-governmental organisation, or a group of individuals. The state and its bodies do not fall within this circle – they are respondents under the Convention, not its beneficiaries. From this structural provision of the Convention, the ECtHR has, over decades, built up a consistent body of case law: a legal entity that is a “governmental organisation” cannot claim victim status in respect of a violation of Convention rights, including the right to freedom of expression under Article 10.
In determining whether an applicant is a “governmental” or “non-governmental” organisation, the Court assesses its legal status, the nature of its activity and the context in which that activity is carried out, as well as the degree of its institutional and operational independence from the political authority of the state. State funding or state founding of a body does not, in itself, automatically deprive it of the right to protection under the Convention – what is decisive is the degree of actual autonomy from the state (Radio France and Others v. France, decision on admissibility, no. 53984/00, ECHR 2003-X). But where such autonomy is absent – where a body exercises delegated state powers, is subject to state control and is state-funded — the Court has consistently refused it Convention protection.
This line of case law covers the most varied forms of state and municipal entities:
Ayuntamiento de Mula v. Spain (decision on admissibility, 2001) — a Spanish municipal council; the application was declared incompatible ratione personae, since a local self-government body is neither a natural person nor a non-governmental organisation within the meaning of Article 34.
Section de commune d’Antilly v. France (decision on admissibility, 1999) — a municipal subdivision participating in the exercise of public authority, recognized as a “governmental organisation” without a right of application.
Döşemealtı Belediyesi v. Turkey (decision on admissibility, 2010) — a Turkish municipality; the Court confirmed that a local self-government body is not a bearer of Convention rights.
Transpetrol a.s. v. Slovakia (decision on admissibility, 2011) and Zastava It Turs v. Serbia (2013) — joint-stock companies under state control, recognized as “state organisations” for lack of sufficient institutional and operational independence.
JKP Vodovod Kraljevo v. Serbia and Croatian Chamber of Economy v. Serbia — a municipal utility company and a chamber of commerce and industry exercising delegated public functions under state control.
Importantly, this case law applies directly to Ukrainian legal entities as well. The Court has repeatedly found Ukrainian state enterprises and institutions to be “state organisations” within the meaning of Article 34 — notably in State Holding Company “Luhanskvuhillya” v. Ukraine (judgment, no. 23938/05, 2009), Novoseletskiy v. Ukraine (no. 47148/99, ECHR 2005-II), and Mykhaylenky and Others v. Ukraine (nos. 35091/02 and others, ECHR 2004-XII), – where the decisive criteria were participation in the exercise of state powers, the performance of public functions under state supervision, and the absence of sufficient independence from the state.
The logic of this settled case law is simple and consistent: the Convention for the Protection of Human Rights and Fundamental Freedoms is a treaty by which contracting states assume obligations toward the individual — not an instrument by which the state, or its emanations, may defend itself against the individual. Granting a state institution the right to freedom of expression under Article 10 in a dispute against a natural person would, in substance, place the state on the same footing as a private subject of Convention rights, which is contrary to the very architecture and spirit of the Convention.
WHY THIS MATTERS
The question raised in the cassation appeal, and which the Supreme Court has found to require a legal conclusion, concerns not an isolated dispute but the systemic approach of the national courts to the application of Article 10 of the Convention. The position the Supreme Court takes will determine whether national judicial practice is brought into line with the settled approach of the European Court of Human Rights, or, conversely, departs from it — extending to state bodies, institutions, and organizations Convention protection that, by the design and letter of the Convention, belongs exclusively to the individual.
