Strasbourg: defaming the dead, football and historical revisionism

26 November 2013 by David Hart KC

Putistin v. Ukraine, ECtHR, 21 November 2013  read judgment

An extraordinary story, with a twist, and an interesting decision by the Strasbourg Court that lack of respect for the honour and dignity of a dead relative may give rise to a breach of Article 8 and its right to family life.

In 1942 various professional footballers who had previously played for FC Dynamo Kyiv but who were now working in a bakery, ran out in the strip of FC Start. Their opponents (Flakelf) were pilots from the German Luftwaffe, air defence soldiers and airport technicians.

The men from Kyiv won 5-3. It sounds to have been a tough game, with Flakelf going for the man rather than the ball, and being aided by a biased ref (day job in the SS). And conventional history has it that the consequences of this brave victory were ghastly. Members of the team were sent off to a concentration camp in which four were eventually executed.

The applicant is the son of one of the victorious FC Kyiv players. In 2001 the newspaper Komsomolska Pravda published an article headed “The Truth about the Death Match”. It featured a picture of the match poster showing the names of all the players, although the applicant’s father’s name was too small to be visible. The journalist interviewed two individuals who made a film about the match. The article said that there had been only 4 Dynamo players in the Start team, who were all executed; other players “worked in the police, collaborated with the Gestapo.”

The applicant sued the paper. He showed that his father had also been sent to a concentration camp, though had not been executed. He sought rectification of the article which he said contained untrue information about his father, and damages. The three Ukrainian courts ruled against him.

By the time his case got to Strasbourg, there had been other newspaper reports, including one alleging that the story of the match was a myth; it was Soviet propaganda, and the executions had been provoked by the NKVD (predecessors to the KGB). In response to the last, this paper was ordered to print that Putistin’s father had played against the Germans and thereafter had been sent to a concentration camp.

As I have noted above, Strasbourg did accept that in principle a claim could lie under Article 8 in respect of the honour and dignity of a deceased relative. For more on this interesting development and its implications for the law of defamation, see Hugh Tomlinson QC’s post.

However, the Court found that there was no breach on the facts. Neither the words of the producer nor anything in the article refers to the applicant’s father:

In order to interpret the article as claiming that the applicant’s father had collaborated with the Gestapo, it would be necessary for a reader to know that the applicant’s father’s name had appeared on the original poster for the match.  What is clear, however, is that his father’s name was not identifiable from the article that was published because the names appearing under the photograph of the poster as reproduced by the paper were illegible.

Hence, whilst the applicant was affected by the article, this was 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.

The courts had 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.

The concurring opinion of Judge Lemmens gives a good deal more context for this historical debate, and we get a different story. The deputy director of the Kyiv History Museum was quoted as saying

I would not like to be a myth buster. However, while hailing the courage and patriotism of the sportsmen, we cannot disregard the historical truth. Photos taken after the match remained in private archives and depict our players and the losers, the German “Flakelf” team, together. Everyone is smiling, almost embracing each other … On the field and after the game the atmosphere was absolutely sporting. The tragedy happened half a year later. It is true that the players of Dynamo were placed in a concentration camp, but not as a result of their victory. In the bakery where they used to work, the frequency of thefts increased. And on 23 February 1943 the members of the Kyiv-based underground movement set the mechanical plant on fire. The Nazis’ answer was a punitive action, shooting hostages from the concentration camp. This included the football players …

Hence, one reason why the Court was so cautious about finding a breach of the right to respect the dead. Too onerous an obligation and one would be in danger of stifling historical revisionism.

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