TORTURE AND INHUMAN TREATMENT

The “Koval case” is a case of torture in the police. It has been dragging on for 5 years. The case is now closed, then reopened. To date, the pre-trial investigation has not yet been completed. During this time, Mr. Koval was supported not only by the Ukrainian but also by the international human rights movement, in particular the international non-governmental organization Amnesty International.

At the press conference of Amnesty International, held in Kyiv on September 27, 2005, the annual report on torture in Ukraine was published. Invited to participate in this press conference, Mykhailo Koval gave interviews to several national TV channels. The current head of the Chernihiv city department of the Ministry of Internal Affairs of Ukraine in the Chernihiv region, Lieutenant Colonel of the militia Eduard Alyokhin, was offended by Mykhailo Koval’s statements addressed to him and filed a corresponding lawsuit.

Referring to the norms of national and international legislation, the court explained that Mr. Koval, in accordance with Article 1 of the UN Convention against Torture, had sufficient grounds to consider himself a victim of torture. In its decision, the court cited Koval’s explanation that he had given an interview as part of an international discussion on the use of torture by police officers and expressed his categorical rejection of this practice.

In particular, the court’s decision stated: “In accordance with the European Convention on Human Rights, everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by the State and regardless of frontiers.
In the decision in the case of Handysite v. the United Kingdom of 07.12.1976, the European Court of Human Rights stated: “The right to impart information and ideas extends not only to information and ideas which are favourably received or regarded as inoffensive and insignificant, but also to those which are offensive, indignant and disturbing. Such are the requirements of pluralism, tolerance and broad-mindedness, without which a democratic society is impossible.”

In its case-law, the Court distinguishes between facts and value judgments, since the existence of facts can be proven, while the truth of a critical statement cannot be proven. The requirement to prove the truth of a critical statement is impossible to fulfill and violates the freedom to hold one’s own opinion, which is a fundamental part of the right protected by Article 10 of the Convention (the Court’s decision in the case of “Linges v. Austria of 18.07.1968).

According to Article 47-1 of the Law of Ukraine “On Information”, no one can be held liable for expressing evaluative judgments. At the same time, the law determines that evaluative judgments are judgments that do not contain factual data.
Since the judgments expressed by the defendant do not contain specific data, they are considered evaluative, which excludes the possibility of their refutation and holding the defendants liable.


Guided by Articles 10, 208, 209, 212 – 215, 294 of the Code of Criminal Procedure of Ukraine, Article 1 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 47-1 of the Law of Ukraine “On Information”, the decision of the European Court of Human Rights in the case “Handysite v. the United Kingdom” dated 07.12.1976, the decision of the European Court of Human Rights in the case “Linges v. Austria” dated 18.07.1968, the Desnyanskyi District Court of Chernihiv ruled in favor of the claim of Alyokhin Eduard Volodymyrovych against Koval Mykhailo Petrovych, LLC “Telestudio “Information Service” on the protection of honor, dignity, business reputation to refuse.

We applaud the High Court for professionalism, fairness and independence in making this decision. It protected the right of a person to their own civil position.

We applaud the High Court for professionalism, fairness and independence in making this decision. It protected the right of a person to their own civil position. The decision was made using a 3-component test, when the public benefit from the raised problem turns out to be higher than the possible unpleasant consequences for an individual. Finally, this decision teaches us to distinguish between “value judgments” and “statements of fact” on the grounds given in it.

I would like to believe that the logic of making decisions by the European Court of Human Rights has been mastered by the vast majority of judges in the Chernihiv region. At least those who for 2 years have been a regular participant in seminars on the topic “Implementation of European law norms into the judicial proceedings of Ukraine”, which were held by the Court of Appeal of Chernihiv region together with the Chernihiv Public Committee for the Protection of Human Rights.


Chernihiv Public Committee for the Protection of Human Rights