Overview prepared by the Higher School of Advocacy of the National Bar Association of Ukraine.
The court has the right to collect evidence related to the subject of the dispute on its own initiative only in cases where it is necessary to protect minors or persons recognized as legally incapable or whose legal capacity is limited
📌Ruling of the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court dated November 20, 2024 in case No. 293/682/23
When filing this lawsuit, PERSON_1, acting on behalf of legally incapacitated PERSON_2, requested the court to recover moral damages of 40,000 UAH from PERSON_3, PERSON_4, PERSON_5 each, referring, in particular, to the fact that the defendants belittle her daughter due to illness, call her various nicknames and swear words, provoke conflict situations, after which the daughter falls into a distressed state, cries, and cannot come to terms with such treatment towards herself. Refusing to satisfy the demands against PERSON_3 and PERSON_4 for compensation for moral damage, the courts of previous instances pointed to the lack of sufficient, proper, and admissible evidence for these claims.
At the same time, the courts did not pay attention to the information from the police department No. 1 of the Zhytomyr Regional Police Department in the Zhytomyr region dated July 11, 2022, stating that PERSON_1 contacted the police regarding a conflict with neighbors in June 2022. Following the consideration of this appeal, it was established that the actions of PERSON_3 and PERSON_4 constitute signs of an administrative offense, provided for by Article 173 of the Code of Administrative Offenses, as a result of which they were held administratively liable.
The Supreme Court notes that according to the content of the sixth part of Article 82 of the Civil Procedure Code of Ukraine, the decision of the court in a case of an administrative offense that has entered into legal force is binding on the court considering the case on the legal consequences of the actions or inaction of the person against whom the court decision was made, only in the issue of whether these actions (inaction) took place and whether they were committed by this person.
In accordance with the second part of Article 13 of the Civil Procedure Code of Ukraine, the collection of evidence in civil cases is not a court’s obligation, except in cases provided for by this Code. The court has the right to collect evidence related to the subject of the dispute on its own initiative only in cases where it is necessary to protect minors or persons recognized as legally incapable or whose legal capacity is limited, as well as in other cases provided for by this Code.
In the case under consideration, a claim was filed for the protection of a legally incapacitated person who, according to the statements of her guardian, the testimony of a witness, and information from the police, suffered unlawful actions from PERSON_3 and PERSON_4.
Obviously, the courts could not overlook the mentioned circumstances and had no obstacles to clarify that according to the information from the Unified State Register of Court Decisions, by the decisions of the Chernyahiv District Court of the Zhytomyr region dated June 30, 2022, in case No. 293/890/22 and dated August 30, 2022, in case No. 293/972/22, PERSON_3 and PERSON_4 were found guilty of committing an administrative offense, provided for by Article 173 of the Code of Administrative Offenses (petty hooliganism) committed under the following circumstances – on June 14, 2022, around 11:00 a.m., while in the village of Zabridya, Zhytomyr district, on Sadovyi Lane, PERSON_3 and PERSON_4 expressed obscene insults towards PERSON_2, did not react to the request to calm down. The court decisions in cases No. 293/890/22 and No. 293/972/22 have entered into legal force.
Under these circumstances, the fact of unlawful actions by PERSON_3 and PERSON_4 against the legally incapacitated PERSON_2 is proven.
Taking into account the requirements of reasonableness and fairness, analyzing the established circumstances in the case as a whole, the Supreme Court considers partially justified the plaintiff’s claim for compensation for moral damage, which consists of committing unlawful actions against the legally incapacitated PERSON_2, and deems it necessary to recover from the defendants PERSON_3 and PERSON_4 in favor of PERSON_1, acting on behalf of the legally incapacitated PERSON_2, compensation for moral damage in the amount of 4,000 UAH each.
At the same time, the panel of judges agrees with the conclusions of the courts of previous instances regarding the lack of grounds for the compensation of moral damage by the defendant PERSON_5, as well as the refusal to satisfy the requirements for the defendants to publicly apologize.
Under these circumstances, since the courts of previous instances incorrectly applied the norms of substantive law in deciding on the claims for compensation for moral damage by the defendants PERSON_3 and PERSON_4, the cassation appeal should be partially satisfied, the challenged court decisions in the specified part should be canceled, and a new court decision should be made on partially satisfying the claim.
🔗Source: https://reyestr.court.gov.ua/Review/123410589
Facts reflecting subjective thoughts and views of the defendant, using provocative rhetoric and other linguistic-stylistic means, are characteristic of judgmental opinions
📌Ruling of the Supreme Court in the composition of the panel of judges of the First Judicial Chamber of the Cassation Civil Court dated April 8, 2024 in case No. 760/5027/21
In the case reviewed by the Supreme Court, PERSON_1 filed a lawsuit against PERSON_2 for the protection of honor, dignity, business reputation, and refutation of false information, compensation for material and moral damage, in which he requested to recognize as false and violating his non-property rights the information disseminated by the defendant on October 10, 2020, at 7:01 p.m. in the group chat ‘OSBB Management’ of the ‘Viber’ instant messaging system, in the form of statements: ‘Conspired with UBC’; ‘Spreads false information about OSBB’; ‘All his actions are aimed at destroying OSBB at the request of UBC for beneficial purposes, namely to help UBC not to comply with the court decision, provide UBC with the opportunity not to build a substation’; ‘Endangers all residents of the building; ‘Walled up the entrance to the electrical panel of the elevators; ‘Sheathed the walls of the ventilation chamber with flammable materials; to obligate the defendant to refute such false information in the same way it was disseminated, and recover from PERSON_2 in favor of PERSON_1, acting on behalf of the legally incapacitated PERSON_2, the amount of lost profit in the amount of 2,313,203.60 UAH and 195,220 UAH for compensation for moral damage.
When resolving the dispute, the court of the first instance, with whose conclusions the appellate court agreed, gave a proper legal assessment of the evidence presented by the parties and their arguments, correctly established the factual circumstances of the dispute, and correctly concluded that the information disseminated by the defendant regarding the plaintiff is judgmental opinions that are not subject to refutation by law.
PERSON_2, who holds the position of secretary at the OSBB ‘Chervonozoryany, 4g,’ provided her own critical assessment of the actions of PERSON_1, as the owner of two apartments in the building at ADDRESS_3, and facts reflecting subjective thoughts and views of the defendant, using provocative rhetoric and other linguistic-stylistic means characteristic of judgmental opinions.
The courts gave a proper legal assessment of the nature of the disputed information and clarified that it does not belong to factual statements but is judgmental opinions, i.e., the disseminated information does not violate the personal non-property rights of the plaintiff. As a result, there are no legal grounds for compensating the plaintiff for damage since his personal non-property rights were not violated (Article 280 of the Civil Code of Ukraine).
The panel of judges agrees with the conclusions of the appellate court that the information disseminated by PERSON_2 on her personal page on the social network ‘Facebook’ is judgmental opinions, the truth of which cannot be verified for their actuality. The statements in the publication are an expression of the subjective thoughts and views of PERSON_2 and do not indicate a violation of the honor, dignity, and business reputation of PERSON_1, as they reflect the personal opinions of PERSON_2 based on her vision of certain political events, are an assessment of the information received, and her conclusions about this information. Such conclusions cannot be refuted or confirmed and, therefore, cannot be the subject of judicial protection under the provisions of Articles 94, 277 of the Civil Code of Ukraine.
The Supreme Court notes that PERSON_1 is a public figure, so his public status and public interest in him when performing his duties indicate broader limits of permissible criticism regarding him, which is consistent with Article 10 of the Convention, relevant practice of the ECHR, the Declaration on Freedom of Political Debate in the Media, approved on February 12, 2004, at the 872nd meeting of the Committee of Ministers of the Council of Europe, as well as recommendations contained in Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe on the right to privacy (see paragraph 21 of the Plenum Resolution of the Supreme Court of Ukraine dated February 27, 2009, No. 1 ‘On Judicial Practice in Cases of Protection of Dignity and Honor of an Individual, as well as Business Reputation of a Natural and Legal Person’).
Furthermore, the Supreme Court emphasizes that the judgmental publication of the defendant in the context related to the public interest – events regarding PJSC ‘PrivatBank.’
Considering the above, the panel of judges finds it necessary to leave the cassation appeal without satisfaction, and the challenged court decision without changes, as the arguments of the cassation appeal do not refute the court’s conclusions.
🔗Source: https://reyestr.court.gov.ua/Review/122091732
The expert conclusions submitted by the plaintiff are not proper and admissible evidence in this case, as they were conducted regarding the video recording without direct access to the video at the plaintiff’s addresses
📌Ruling of the Supreme Court in the composition of the panel of judges of the Third Judicial Chamber of the Cassation Civil Court dated June 26, 2024 in case No. 752/6120/19
Refusing to satisfy the plaintiff’s claims, the court of the first instance, with whose conclusions the appellate court agreed, taking into account the cited norms of substantive law, correctly establishing the circumstances of the case, which are essential for its resolution, giving a proper assessment of the evidence presented by the parties, reached a reasoned conclusion on the refusal to satisfy the plaintiff’s claims, as the plaintiff did not prove with proper and sufficient evidence that the information he requested to be recognized as false was disseminated, and that the information was disseminated precisely by the defendant PERSON_2.
At the same time, the courts of previous instances correctly took into account that there was no video under the references on the website www.youtube.com and on the social network www.facebook.com, and the conclusion No. 9266 of the computer-technical expertise dated March 13, 2019, and the conclusion of the semantic-textual (linguistic) expertise No. 9271 dated March 19, 2019, were recognized by the courts as improper and inadmissible evidence in this case since such evidence does not confirm the fact of disseminating information by PERSON_2.
The courts reached this conclusion on the basis that the expert conclusions submitted by the plaintiff PERSON_1 are not proper and admissible evidence in this case, as they were conducted regarding the video recording without direct access to the video at the addresses indicated by the plaintiff. Moreover, at the time of their signing, the persons who compiled them did not have the status of a court expert.
There is no evidence to confirm the reverse of the case materials, and the plaintiff’s party did not refute the above.
Taking into account the above, the courts of the first and appellate instances correctly identified the nature of the disputed legal relations, the norms of law to be applied, and, giving a proper legal assessment of the evidence available in the case materials, reached a reasoned conclusion that the plaintiff’s rights were not violated.