NGO Ecoclub appealed to the Supreme Court to protect its right to freedom of speech in the case of Kronospan.
Background:
In the summer of 2019, Rivne media disseminated the intentions of Technoprivid Invest Group LLC (now Kronospan Rivne LLC) to build a woodworking plant in Horodok village (near Rivne). Local communities were concerned about possible harmful emissions, the factory’s proximity to houses and the non-transparency of negotiations between the company and authorities. They have turned to Ecoclub for support. Ecoclub analyzed the environment impact assessment report and published its comments.
In February 2020, representatives of Kronospan filed a lawsuit against Ecoclub for the damage to business reputation caused by the dissemination of the information about the environmental consequences of the construction of the planned plant, which was granted by the court and was recently left unchanged by an appeal court.
Decision of the Appeal court in the case 918/132/20 (in Ukrainian): https://reyestr.court.gov.ua/Review/94487209
Why we filed a cassation appeal:
In our opinion, the decisions of the Economic Court of Rivne Region and the North-Western Economic Appeal Court go against the law as they violate the constitutional right of Ecoclub as well as the Convention for the Protection of Human Rights and Fundamental Freedoms and the Aarhus Convention.
Regarding the freedom to disseminate the comments that we had provided in the process of environmental impact assessment.
That is why Ecoclub has filed an appeal to the Economic Court of Cassation of the Supreme Court requesting:
1. To open cassation proceedings in the case and to suspend the execution of the appealed decision until the end of its review in cassation.
2. To cancel the decision of the North-Western Economic Appeal Court from January 20, 2021 and to transfer the case for a new trial by an appeal court.
The main grounds for appeal to the Supreme Court are as follows
1. The granting of the lawsuit of the Limited Liability Company “TECHNOPRIVID INVEST GROUP” (hereinafter Kronospan) has violated the rights of Ecoclub to freely disseminate information and its own comments on the environment impact assessment report.
Ecoclub is a public that, according to the Law on environmental impact assessment, has the right to express their opinions, remarks and comments during the public hearings and after their completion, without justification and proof.
That is, the purpose of public hearings is to collect comments from the public and take them into account.
Therefore, the comments made by Ecoclub in its submissions to the authorities and published on the Internet during the period of public hearings on the EIA report cannot be a subject for refutation.
Also, filing a lawsuit for an unreasonably large amount could indicate an attempt by Kronospan in this way to stop the public from discussing inconvenient issues, to intimidate the public.
In our opinion, the refutation of the information that is based on the environmental impact assessment report is illegal.
2. The court has adopted the illegal decision refuting Ecoclub’s comments, which are our criticism of the environmental impact assessment report.
According to the Constitution of Ukraine, everyone is guaranteed the right to freedom of thought and speech. And According to the Law on Information, no one can be held liable for making value judgments.
This means that Ecoclub’s comments on the environmental impact assessment (EIA) report cannot be refuted, as they reflect the organization’s attitude and position towards the report and thus are value judgments.
The refutation of the comments received in the EIA process of the planned activity contradicts the purpose of the EIA, as it creates obstacles for free and comprehensive discussion of possible consequences of activities that may have a negative impact on the environment, due to fears of prosecution for the comments. This practice also contradicts Ukraine’s international obligations.
3. The requirement to refute comments on the EIA report is a violation of freedom from persecution of the public when it exercises the right to participate in environmental decision-making.
The Law on Environmental Impact Assessment and the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters allow and guarantee public participation in the environmental impact assessment procedure, encourage the submission of any comments for identification of all possible risks from the planned activity, as well as explicitly prohibit harassment and persecution for the exercise of this right.
4. The court has unduly applied the provisions of the law to protect business reputation of Kronospan
All the allegations made by Ecoclub did not concern the assessments of the business activity of the plaintiff, but the possible dangers of the planned activity.
That is, Ecoclub’s criticism concerned only the content of the environmental impact assessment report prepared by “ABMK” LLC.
ABMK LLC, as the author of the report, has not made any demands to Ecoclub to refute unreliable information.
In addition, at the time of the dissemination of information, Kronospan did not carry out such activity at all.
5. When considering the claim against Kronospan, the court of first instance did not take into account the circumstances that require greater protection of the right to free expression by Ecoclub of views and beliefs and the right to disseminate information if compared to Kronospan’s right to protection of its business reputation.
The fact that the information disseminated by Ecoclub was a critique of the shortcomings of the environmental impact assessment report and was related to a socially important topic, i.e. the planned construction and implementation of activities that could have a significant environmental impact, has not been taken into account. And that this information had not concerned the assessments of Kronospan’s business activity in general and, consequently, its business reputation.
The very fact of filing such a lawsuit, and even more so its granting, in our opinion, creates an “atmosphere of fear” for their personal interests among civil society when discussing a socially important topic, because it significantly narrows the opportunity for free and comprehensive public discussion.
Business entities, especially large international corporations, should express more tolerance to criticism, because they possess incomparably greater expert, financial, and administrative resources than civil society representatives who participate in socially important discussions.
Contacts:
Inna Muliavka, press officer, NGO Ecoclub,
Ph.: +380673634097,
E-mail: press@ecoclubrivne.org