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FIFTH
SECTION
CASE OF GAZETA UKRAINA-TSENTR v. UKRAINE
(Application
no. 16695/04)
JUDGMENT
STRASBOURG
15 July
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gazeta
Ukraina-Tsentr v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
Ganna Yudkivska, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16695/04) against Ukraine
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian company, Gazeta Ukraina-Tsentr
(“the applicant company”), on 1 January 2004.
- The
applicant company was represented by Ms L. Opryshko and Ms L.
Pankratova, lawyers practising in Kyiv. The Ukrainian Government
(“the Government”) were represented by their Agent, Mr Y.
Zaytsev, from the Ministry of Justice.
- On
2 March 2009 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant company is the editorial body of a limited liability
company called the Ukraina-Tsentr Newspaper and is registered in the
city of Kirovograd, Ukraine.
- In
June 2002 the mayoral elections were conducted in the city of
Kirovograd. On 12 June 2002, during the election campaign, two press
conferences relating to those elections were held at the Ukrainian
Independent News Agency (“the UNIAN”). During one of
those press conferences, a local Kirovograd journalist, Mr M. accused
one of the candidates, Mr Y., of ordering him to be murdered for
5,000 US dollars (USD). The wording of the accusation made
by Mr M., as later established by the domestic courts, contained the
following paragraph:
“He (Mr Y.) went to his friend, the one locally
known politician, whom I will not name yet, but if necessary we will
provide [his name], we have facts. Upon his request, the other took
out five thousand dollars of his money and handed it to his head of
security service and said the following, that it is necessary to
reserve for me a place in the morgue.
So, at present, they “ordered” me for five
thousand dollars. Who ordered? I say: [Mr] Y. [full name], I declare
it officially.”
- This
information among other news was disseminated by the UNIAN via e-mail
and posted on its website. According to the applicant company, it
received this information by electronic mail in the following form:
“Furthermore, [Mr] M. accused the Kirovograd
mayoral candidate and President of the Kirovskiy District Court, [Mr]
V. Y., “of ordering him to be murdered”. The journalist
reported that for safety reasons he had taken his family away from
the region. According to him, all four journalists participating in
the press conference addressed the General Prosecutor’s Office,
the Security Service of Ukraine and the Ministry of the Interior
concerning the threats to them and claimed that they had proof of
pressure being applied to them”.
- According
to the applicant company, on the same day, the STB TV channel in its
Vikna-Novyny news programme disseminated similar information,
indicating that Mr M. had also mentioned the sum of USD 5,000
for “ordering him to be murdered”.
- On
14 June 2002 the applicant company published an article which was
titled “The metropolitan tour” in which the
above-mentioned press conferences of 12 June 2002 were described.
Among other things, the article contained the following paragraph:
“[Mr] M. accused [Mr] Y. of ‘ordering him to
be murdered’ and even stated the amount paid for the ‘order’
– 5,000 US dollars. The journalist stated that for safety
reasons he had taken his family away from the region. According to
him, all four journalists participating in the press conference
addressed the General Prosecutor’s Office, the Security Service
of Ukraine and the Ministry of the Interior concerning the threats to
them. He also claimed that they had proof of the pressure being
applied to them.”
- In August 2002 Mr Y. lodged a civil claim in the
Kirovograd Leninsky District Court (the Leninsky Court) against the
applicant company and Mr M. complaining that the phrase “[Mr]
M. accused [Mr] Y. ‘of ordering him to be murdered’ and
even stated the amount paid for the ‘order’ – 5,000
US dollars” published by the applicant company was untrue and
abased his human dignity. He maintained that that publication had
affected his professional and private life and damaged his reputation
as an individual, lawyer and politician. Taking the view that the
publishing of a correction would not be sufficient, he asked the
courts to pay him non-pecuniary damages. Later, Mr Y. supplemented
his claim by asking for the statement made by Mr M. during the press
conference (see paragraph 5 above) to be found untrue and defamatory.
- According
to the applicant company, its co-defendant, Mr M., asked the court to
adjourn the proceedings and on 30 November 2002 asked the
Supreme Court to transfer the case to another court. The applicant
company supported those requests. In his request to the Supreme
Court, Mr M. noted in particular that the plaintiff was the President
of the Kirovograd Kirovskiy Local Court and therefore, to ensure the
objective and unbiased examination of the case, he asked for the case
to be transferred to one of the local courts in Kyiv, the city in
which the press conference had taken place. By letter dated 12
December 2002, the Deputy President of the Supreme Court allowed the
request in part and ordered the case to be transferred to the
Kamyansky Local Court in the Cherkassy region. However, by that time,
the Leninsky Court had already examined the case (see the next
paragraph), having rejected Mr M.’s request for the case to be
adjourned.
- On
10 December 2002 the Leninsky Court, in a single judge formation
(Judge B.) found that the accusations made by Mr M. and the applicant
company that Mr Y. had ordered Mr M. to be murdered were contrary to
the principle of the presumption of innocence guaranteed by the
Constitution. The defendants did not prove before the court that the
disseminated information was true. The court found the following
phrase from the applicant company’s article “[Mr] M.
accused [Mr] V. Y. ‘of ordering him to be murdered’
and noted the amount paid for the ‘order’ – 5,000
US dollars” untrue and defamatory. The
court also found that Mr M. had accused Mr Y.
of ‘ordering’ him to be murdered for USD 5,000 during the
press conference and that such accusation was also untrue and
defamatory. The court noted that, in view of the fact that the two
bodies had not drawn up a formal contract between them, the applicant
company could not prove that it had received the impugned information
officially from the UNIAN. Furthermore, the information published by
the applicant company did not correspond to the information
disseminated by the UNIAN. For those reasons, the court concluded
that the applicant company could not be protected against liability.
The applicant company and Mr M. were ordered to pay Ukrainian
hryvnias 100,000 (UAH) and UAH 20,000, respectively, in compensation.
The court, however, found no liability against the UNIAN, which had
been identified as a co-defendant by the court, because the plaintiff
had lodged no claims against it and the UNIAN had published a
correction.
- The
applicant company appealed against the decision of the first-instance
court. It complained, in particular, that Judge B. could not be
impartial because Mr Y. was the chairman of the regional council of
judges and the deputy chairman of the regional branch of the Union of
Lawyers and, as a judge and a lawyer, Judge B. was dependent upon the
plaintiff. The applicant company further noted that the court had
disregarded the fact that the impugned information had been
circulated by electronic mail, had also been freely accessible on the
UNIAN website and that such information belonged in the public
domain. It also submitted that the plaintiff had not asked it to
correct the material and its proposal to publish a correction before
the judicial proceedings and during the judicial proceedings had been
refused by the plaintiff.
- On
12 March 2003 the Kirovograd Regional Court of Appeal upheld the
decision of the first-instance court but decreased the compensation
award. The applicant company was ordered to pay UAH 50,000 in
compensation.
- The
applicant company appealed in cassation.
- On
2 October 2003 the Supreme Court upheld the decisions of the lower
courts.
- On
30 October 2003 the applicant company paid the compensation awarded
against it and UAH 2,500 in enforcement fees.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legislation concerning the independence of the
judiciary
The Judicial System Act, 2002
- Relevant
provisions of the Act read as follows:
Section 97
Disciplinary proceedings against judges
“1. Disciplinary proceedings shall be regarded as
the procedure of consideration by the body, specified by the law, of
a statement regarding the breaking of judicial status, official
duties or the oath by a judge.
2. The right to initiate disciplinary proceedings
against a judge shall belong to the following persons: ... the
chairman of a relevant council of judges...
3. It is forbidden to abuse the right specified in
paragraph 2 of this section. In particular, it is forbidden to
initiate consideration of an issue concerning the legal liability of
a judge without sound reasons or to use the said right to exert
pressure upon a judge in connection with the administration of
justice by such a judge...”
Section 111
The councils of judges
“1. Within the period between the conferences of
judges the functions of a judicial self-government shall be performed
by a relevant council of judges.
2. A council of judges shall elect from among its
members the chairman, deputy chairman and secretary of a council of
judges. Chairmen and deputy chairmen of the courts of appeal and
higher courts, head of the military chamber of the Court of Appeal of
Ukraine and head of the military chamber of the Court of Cassation of
Ukraine shall not be elected to the post of chairman of a relevant
council of judges.
3. Within the period between the conferences of judges a
council of judges shall provide for execution of the decisions taken
by a conference and control over their observance, also decide on
convocation of the next conference. The powers and operation of a
council of judges shall be specified by this Act and the regulations
of a council of judges approved by a conference of judges.
4. A council of judges shall:
1) exercise control over the operation of relevant
courts and relevant departments of the State judicial administration,
hear progress reports of chairmen of these courts and officials of
the State judicial administration;
2) consider the issues of legal and social protection of
judges, provision of consumer and household services for judges and
their families, and take the decisions to this effect;
3) consider the issues concerning the appointment of
judges to administrative posts in courts in the manner prescribed by
this law;
4) hear the reports of members of relevant judicial
boards of experts concerning their work on these boards;
5) submit the proposals on operation of relevant courts
for consideration of the State bodies and local self-government
authorities;
6) hear, at least once a year, the information of the
State judicial administration of Ukraine on support of operation of
the courts of general jurisdiction.
7) take other decisions falling within the limits of its
power.
5. The decisions taken by a council of judges shall be
binding for the judges holding the administrative posts in relevant
courts. A decision of a council of judges may be cancelled only by a
conference of judges and suspended by the decision of the Council of
Judges of Ukraine.”
B. Legislation concerning defamation proceedings
1. Constitution of Ukraine
- Relevant extracts from the Constitution read as
follows:
Article 32
“... Everyone is guaranteed judicial protection of
the right to have corrected misinformation communicated about himself
or herself or members of his or her family, and of the right to
demand that any type of material be corrected, and also the right to
compensation for pecuniary or non-pecuniary damage inflicted by the
collection, storage, use and dissemination of such misinformation.”
Article 34
“Everyone is guaranteed the right to freedom of
thought and speech, and to the free expression of his or her views
and beliefs.
Everyone has the right to freely collect, store, use and
disseminate information by oral, written or other means of his or her
choice.
The exercise of these rights may be restricted by law in
the interests of national security, territorial indivisibility or
public order, with the purpose of preventing disturbances or crime,
protecting the health of the population, the reputation or rights of
other persons, preventing the publication of information received
confidentially, or maintaining the authority and impartiality of
justice.”
Article 62
“A person is presumed innocent and shall not be
subjected to criminal conviction unless proved guilty through a legal
process which establishes a guilty verdict.
No one is obliged to prove that he or she is innocent of
committing a crime.
An accusation shall not be based on illegally obtained
evidence or assumptions. All doubts in regard to the proof of guilt
are interpreted in the accussed’s favour.
In the event that a court verdict is revoked, the State
shall, as determined, provide pecuniary or non-pecuniary damage.”
2. Civil Code of 1963
- Relevant
extracts from the Civil Code read as follows:
Article 7
Protection of honour, dignity and reputation
“A citizen or an organisation shall be entitled to
demand in a court of law that material be corrected if it is not true
or is set out untruthfully, degrades their honour and dignity or
reputation, or causes damage to their interests, unless the person
who disseminated the information proves that it is truthful.
... information disseminated about a citizen or an
organisation that does not conform to the truth and causes damage to
their interests, honour, dignity or reputation shall be subject to
rectification, and pecuniary and non-pecuniary damage can be
recovered. A limitation period of one year shall apply to claims
concerning rectification of such data and compensation.”
3. Printed Media (Press) Act
- Relevant
extracts from the Printed Media (Press) Act provide:
Section 26
The rights and obligations of journalists
“... A journalist is obliged to:
... 2) provide objective and truthful information for
publication; ...”
Section 37
Correction of material
“Citizens, legal entities and State bodies and
their legal representatives have the right to demand correction of
material published about them or data that does not correspond to the
truth or defames their honour and dignity.
If the editorial board does not have any evidence that
the information published by it corresponds to the truth, it has to
correct this material at the request of the plaintiff in the next
issue of the printed media or to publish a correction on its own
initiative. ...”
Section 42
Exemption from liability
“The editorial board and journalists are not
liable for the publication of information that is untrue, defames the
honour and dignity of citizens and organisations, infringes their
rights and lawful interests or constitutes abuse of the freedom of
activity of the media and the rights of journalists if:
1) this information was received from the
news agencies or from the media owner (co-owners);
2) the information contains responses to a
formal request for access to official documents or to a request for
written or oral information, provided in accordance with the Data
Act;
3) the information is a verbatim reproduction
of any official address of the officials of State bodies,
organisations and the citizens’ unions;
4) the information is a verbatim reproduction
of materials published by other printed media which refer to that
information;
5) the information contains secrets that are
specifically protected by law, but the journalist received this
information lawfully.”
4. News Agencies Act, 1995
- The
relevant extract of the Act provides as follows:
Section 30
Relationships between news agencies and
distributors/owners (users) of a means of communication
“The basis of a relationship between a news agency
and distributor/owner (user) of a means of communication shall be in
the form of a contract.
A distributor/owner (user) of a means of communication
enters into a contract with the news agency if the latter has a State
registration certificate.”
5. Resolution No. 7 of the Plenary Supreme Court of
28 September 1990 “on the Application of the Legislation
Regulating the Protection of the Honour, Dignity and Business
Reputation of Citizens and Organisations”
- The
relevant extract from Resolution No. 7 reads as follows:
“... 17. In accordance with Article 7
of the Civil Code, the defendant [in a defamation case] has to prove
that the information disseminated by him corresponds to the truth.
The plaintiff only has the obligation to prove that the defendant has
disseminated defamatory information about him. The plaintiff also has
a right to provide evidence of the untruthfulness of such
information.”
C. Other materials
- The
applicant company submitted extracts from reports published in
Ukraine by the NGO, the International Foundation “Centre for
Judicial Studies”. The reports titled “Monitoring of
Judicial Independence in Ukraine (2007)” and “Monitoring
of Judicial Independence in Ukraine. (2008)” provided, inter
alia, that among the forms of pressure [being put] on judges were
threats to ‘complicate a career’ and to ‘initiate
dismissal or disciplinary proceedings’. According to the same
reports, councils of judges had been rated the third most influential
body on judges because they could affect the professional career of a
judge.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant company complained that the first-instance and appellate
courts were not independent and impartial because Mr Y., the
plaintiff in the proceedings, was the chairman of the Kirovograd
Regional Council of Judges and could influence any judge in the
region. It relied on Article 6 § 1 of the Convention,
which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant company maintained that there was a big problem with the
independence of the judiciary in Ukraine. They referred to the Court
findings in the case of Sovtransavto (see Sovtransavto Holding v.
Ukraine, no. 48553/99, § 80, ECHR 2002 VII) in
which the Court found that the interventions coming from the
executive branch of the State revealed a lack of respect for judicial
office itself. The applicant company also submitted reports written
in 2007 and 2008 by the NGO the Centre for Judicial Studies on the
subject of the monitoring of judicial independence. It concluded that
among the forms of pressure being put on judges were threats to
‘complicate a career’ and to ‘initiate dismissal or
disciplinary proceedings’. According to the same reports,
councils of judges had been rated the third most influential body on
judges because they could affect the career of a judge.
- With
reference to the domestic law, the Government maintained that the
judiciary in Ukraine enjoyed institutional and financial
independence. They considered that, being the chairman of a
collective body – the council of judges - the plaintiff in the
impugned proceedings had had no influence on decisions taken by the
first-instance and appellate courts.
- According
to the Court’s constant case-law, the existence of impartiality
for the purposes of Article 6 § 1 must be determined according
to a subjective test where regard must be had to the personal
conviction and behaviour of a particular judge, that is, whether the
judge held any personal prejudice or bias in a given case; and also
according to an objective test, that is to say by ascertaining
whether the tribunal itself and, among other aspects, its
composition, offered sufficient guarantees to exclude any legitimate
doubt in respect of its impartiality (see, inter alia, Fey
v. Austria, 24 February 1993, §§ 27, 28 and 30,
Series A no. 255, and Wettstein v. Switzerland, no.
33958/96, § 42, ECHR 2000-XII). It must be decided in each
individual case whether the relationship in question is of such a
nature and degree as to indicate a lack of impartiality on the part
of the tribunal (see Pullar v. the United Kingdom, 10 June
1996, § 38, Reports of Judgments and Decisions
1996-III).
- As
to the subjective test, the personal impartiality of a judge must be
presumed until there is proof to the contrary (Wettstein,
cited above, § 43).
- In
the instant case, the Court is not convinced that there are
sufficient elements to establish that any personal bias was shown by
the judges of the first-instance and appellate courts, who sat in the
applicant company’s case. In any event, the Court does not
consider it necessary to rule on that question because it has arrived
at the conclusion, for the reasons set out below, that there was a
lack of objective impartiality.
- As
to the objective test, it must be determined whether, quite apart
from the conduct of the judges in the present case, there are
ascertainable facts which may raise doubts as to their impartiality.
This implies that, in deciding whether in a given case there is a
legitimate reason to fear that a particular judge lacks impartiality,
the standpoint of the person concerned is important but not decisive.
What is decisive is whether this fear can be held to be objectively
justified (see Wettstein, cited above, § 44, and
Ferrantelli and Santangelo v. Italy, 7 August 1996,
§ 58, Reports of Judgments and Decisions
1996 III).
- In
this respect even appearances may be of a certain importance or, in
other words, “justice must not only be done, it must also be
seen to be done” (see De Cubber v. Belgium, 26 October
1984, § 26, Series A no. 86). What is at stake is the
confidence which the courts in a democratic society must inspire in
the public (see Wettstein v. Switzerland, loc. cit., and
Castillo Algar v. Spain, 28 October 1998, § 45,
Reports of Judgments and Decisions 1998 VIII).
- The
Court notes that the parties made a number of comments on the general
situation concerning the institutional and financial independence of
the judiciary in Ukraine. The Court finds those general comments of
no relevance to the present case because the principal issue is not
the independence of judges from other branches of power or third
parties but the issue of the independence of judges within the
judicial system itself and the risks that judges could be influenced
by their colleagues.
- The
Court notes that the plaintiff in the present case held the position
of chairman of the regional council of judges. Despite the
Government’s arguments that a council of judges is a collective
body, the domestic legislation seems to empower the chairman of such
a council to initiate disciplinary proceedings against other judges.
The applicant company submitted material about the monitoring of
judicial independence, which demonstrates the possible risk that
judges could be influenced through a threat of disciplinary
proceedings and other career-related decisions which are within the
competence of the chairman of a council of judges. Therefore, the
applicant company could reasonably anticipate a possible conflict of
interest in the domestic proceedings in question. Furthermore, the
Deputy President of the Supreme Court allowed the request of the
defendants in part, although he had not, as asked, transferred the
case to a court in Kyiv, but had transferred it to a first-instance
court in another region of Ukraine. Although this decision by the
Deputy President of the Supreme Court did not state clearly the
reasons for the transfer, it suggested that the applicant company’s
fear about a risk of bias of the courts in the Kirovograd region was
not without substance. Therefore, in the Court’s view, the
applicant company’s fears that judges of first-instance and
appellate courts lacked impartiality can be held to be objectively
justified. Moreover, the higher courts, in dealing with the applicant
company’s appeals, disregarded its submissions to this effect.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant company complained that the interference with its freedom
of speech was not in accordance with law and was disproportionate and
unnecessary in a democratic society. It relied on Article 10 of the
Convention, which reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The arguments of the parties
a. The applicant company
- The applicant company noted that there had been a
legal basis for the interference. However, it considered that the
domestic courts had failed to properly examine the fact that it was
the UNIAN which had disseminated the information. The domestic courts
had essentially relied on the fact that there had been no formal
written agreement between the UNIAN and the applicant company and
therefore the fact of disseminating news to the applicant company
could not be proven. In its opinion, such an approach by the domestic
courts had not been based on the law. The applicant company also
criticised the domestic law for not ensuring that the media was
exempted from liability for disseminating statements made by third
parties who, while acting unofficially, nevertheless reported
socially important information. It also noted that section 42 of the
Printed Media (Press) Act requires that statements made by third
parties must be quoted verbatim. Accurate but not literally quoted
statements would not provide exemption from liability. They concluded
that the shortcomings of the domestic legislation together with the
failure of the domestic courts to apply the standards of the Court
had led to a situation in which it had been punished financially for
the accurate reiteration of a statement made about a politician by a
third party in the context of public debate.
- The
applicant company noted that the domestic courts had recognised the
fact that Mr M. had publicly accused Mr Y. of ordering him to be
murdered for USD 5,000 and that that information had been
disseminated even prior to the applicant company’s impugned
publication. In such circumstances it was not important that the
representative of the applicant company had not been present at the
press conference and that the source of information had not been
mentioned. Furthermore, the mentioning of the amount in its
publication had not affected the nature of the accusation made by Mr
M. The applicant company stressed that it had not accused Mr Y.
of carrying out any illegal activities but had only disseminated
information of significant public interest which it had received from
a third party within the context of the election debates. With
reference to the case of Gongadze v. Ukraine (no. 34056/02,
ECHR 2005 XI), it also noted that Mr M. was a journalist
and that it was dangerous for journalists to criticise politicians in
Ukraine. It considered that its punishment for the accurate
reiteration of information that had already been made public was
inappropriate and disproportionate to the aim of protecting the
reputation of Mr Y.
- The
applicant company noted that the domestic courts had not
differentiated between Mr M., who had made an accusation against Mr
Y., and the applicant company, which had merely reported the
accusation without adding any comments. However, the domestic courts
had asked them to prove the truthfulness of the accusation made by a
third person.
- It
also noted that the domestic courts had considered the plaintiff as
academician and judge and completely disregarded the fact that he had
acted as a politician in the mayoral elections. The publication had
nothing to do with the private life of the plaintiff or his academic
and judicial activities and was part of a political debate on
elections which presupposed wider limits of criticism. The applicant
company further noted that the compensation it had been ordered to
pay for defamation was one of the biggest of its kind in the judicial
practice of Ukraine and had forced it to reduce its staff and
circulation.
b. The Government
- The Government maintained that the interference with
the applicant company’s freedom of expression had been in
accordance with law, as it had been based on the clear and
foreseeable provisions of the Constitution, the Civil Code, the
Printed Media (Press) Act, and the News Agencies Act.
- The
Government noted that the contested article was published by the
applicant company during the mayoral elections in which Mr Y. was one
of the main candidates. Therefore, there had been an important public
interest in holding fair elections. Furthermore, the domestic courts
had been protecting the rights and reputation of Mr Y. which was not
only a permissible ground for interference under the second paragraph
of Article 10 of the Convention but also protected one of the
rights guaranteed by Article 8.
- The
Government stressed the great impact of information during the
electoral process and noted that the applicant company had
disseminated information, obtained from unknown sources, accusing Mr
Y. of ordering murder. They noted that the applicant company had
failed to prove at the domestic level that it had paid a subscription
to receive news from the UNIAN. Furthermore, it did not follow the
exact wording of the statement by Mr M. Therefore, it could not be
exempted from liability under section 42 of the Printed Media
(Press) Act. The Government also noted that the applicant company had
stated the amount of the alleged order for Mr M. to be murdered,
which had not been mentioned in the information disseminated by the
UNIAN. In their opinion, such level of detail clearly brought the
information disseminated by the applicant company into the category
of an accusation of a serious crime based on concrete facts, while no
criminal investigations had been conducted against Mr Y. at the time
of publication. They concluded that the interference was necessary
for the protection of the reputation and rights of others as
stipulated in the second paragraph of Article 10.
- As
to the proportionality of the interference, the Government considered
that the amount of damages awarded against the applicant company by
the first-instance court - UAH 100,000, had been excessive and
disproportionate, but this lack of proportionality had been corrected
by the appellate court which had reduced the amount to UAH 50,000
taking into account the fact that the applicant company was a
regional newspaper. The latter amount appeared reasonable to the
Government, because this sum had not led to the bankruptcy of the
applicant company and it had continued its activities afterwards.
2. The Court’s assessment
a. General principles
- The
Court reiterates the following fundamental principles in this area:
(a) In
exercising its supervisory jurisdiction, the Court must look at the
interference in the light of the case as a whole, including the
content of the remarks held against the applicant company and the
context in which he made them. In particular, it must determine
whether the interference at issue was “proportionate to the
legitimate aims pursued” and whether the reasons adduced by the
national authorities to justify it are “relevant and
sufficient” (see Barfod v. Denmark, 22 February 1989, §
28, Series A no. 149). In doing so, the Court has to satisfy
itself that the national authorities applied standards which were in
conformity with the principles embodied in Article 10 and,
moreover, that they based themselves on an acceptable assessment of
the relevant facts (see Jersild v. Denmark, 23 September 1994,
§ 31, Series A no. 298).
(b) An
interference with a person’s freedom of expression entails a
violation of Article 10 of the Convention if it does not fall within
one of the exceptions provided for in paragraph 2 of that Article.
The Court therefore has to examine in turn whether such interference
was “prescribed by law”, whether it had an aim or aims
that is or are legitimate under Article 10 § 2 and whether
it was “necessary in a democratic society” for the
aforesaid aim or aims (see Sunday Times v. the United Kingdom (no.
1), 26 April 1979, § 45, Series A no. 30).
(c) The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
(d) The
press plays an essential role in a democratic society. Although it
must not overstep certain bounds, regarding, in particular,
protection of the reputation and rights of others and the need to
prevent the disclosure of confidential information, its duty is
nevertheless to impart – in a manner consistent with its
obligations and responsibilities – information and ideas on all
matters of public interest, including those relating to justice. Not
only does it have the task of imparting such information and ideas,
the public also has a right to receive them. Article 10 protects not
only the substance of the ideas and information expressed, but also
the form in which they are conveyed. Journalistic freedom also covers
possible recourse to a degree of exaggeration, or even provocation
(see Perna v. Italy [GC], no. 48898/99, § 39, 6 May
2003, with further references).
(e) There
is little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on questions of public
interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95,
§ 61, ECHR 1999-IV). Moreover, the limits of acceptable
criticism are wider as regards a public figure, such as a politician,
than as regards a private individual. Unlike the latter, the former
inevitably and knowingly lays himself open to close scrutiny of his
words and deeds by journalists and the public at large, and he must
consequently display a greater degree of tolerance (see Lingens
v. Austria, 8 July 1986, § 42, Series A no. 103,
or Incal v. Turkey, 9 June 1998, § 54, Reports
of Judgments and Decisions 1998-IV).
(f) Article
10 of the Convention protects journalists’ right to divulge
information on issues of general interest provided that they are
acting in good faith and on an accurate factual basis and provide
“reliable and precise” information in accordance with the
ethics of journalism. Under the terms of paragraph 2 of Article 10 of
the Convention, freedom of expression carries with it “duties
and responsibilities”, which also apply to the media even with
respect to matters of serious public concern. Moreover, these “duties
and responsibilities” are liable to assume significance when
there is a question of attacking the reputation of a named individual
and infringing the “rights of others” (see Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 67, ECHR 2007 ..., and Pedersen
and Baadsgaard v. Denmark [GC], no. 49017/99, § 78,
ECHR 2004 XI).
(g) News
reporting based on interviews or reproducing the statements of
others, whether edited or not, constitutes one of the most important
means whereby the press is able to play its vital role of “public
watchdog” (see, for instance, The Observer and
The Guardian v. the United Kingdom, 26 November
1991, § 59, Series A no. 216). In such cases, a distinction
needs to be made according to whether the statements emanate from the
journalist or are quotations from others, since punishment of a
journalist for assisting in the dissemination of statements made by
another person would seriously hamper the contribution of the press
to discussion of matters of public interest and should not be
envisaged unless there are particularly strong reasons for doing so
(see Pedersen and Baadsgaard, cited above, § 77;
Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 65,
Series A no. 239; and Jersild, cited above, § 35).
b. Application of the aforementioned
principles to the instant case
i. Whether there was interference
- The
Court considers, as agreed by the parties, that the decisions of the
domestic courts and the award of damages made against the applicant
company amounted to “interference by [a] public authority”
with the applicant company’s right to freedom of expression
under the first paragraph of Article 10. Such interference will
entail a violation of Article 10 unless it is “prescribed
by law”, has an aim or aims that are legitimate under
paragraph 2 of the Article and is “necessary in a
democratic society” to achieve such an aim or aims.
ii. Whether the measure was prescribed by
law and pursued a legitimate aim
- The
Court notes that the interference complained of had a legal basis,
namely, Article 7 of the Civil Code (see paragraph 19 above). It
considers that this provision is both accessible and foreseeable in
its application. As to the law governing the exemption of the media
from liability (see paragraph 20 above), the Court considers that the
applicant company’s arguments mostly related to the
interpretation and application of law by the domestic courts, which
issue will be more appropriately dealt with below, under the
proportionality limb of its analysis.
- The
Court notes that the interference served the legitimate aim of “the
protection of the reputation or rights of others”. It therefore
remains to be examined whether the interference was “necessary
in a democratic society”.
iii. “Necessary in a democratic
society”
- In
the instant case, the applicant company was ordered to pay
non-pecuniary damage for publishing untrue and defamatory statements
against Mr Y. The publication in question reported on the
accusations made by Mr M. against Mr Y. during the press
conference devoted to the mayoral elections in Kirovograd. The
domestic courts found the applicant company and Mr M. jointly
guilty of accusing Mr. Y of a serious crime. The courts also refused
to exempt the applicant company from liability for disseminating
untrue and defamatory information. The courts’ reasoning was
that the applicant company did not have a formal contract with the
UNIAN news agency and had not proved that the published information
had come from official sources.
- The
Court notes that the allegations made by Mr M. were very serious. The
applicant company reported on the fact that this accusation had been
made in the context of the widely debated issue of the mayoral
elections in Kirovograd. Furthermore, the vulnerability of political
journalists in itself was a topic of important public interest, given
that, as the Court found in the case of Gongadze, journalists
who cover politically sensitive topics place themselves in a
vulnerable position vis-à-vis those in
power (as evidenced by the death of eighteen journalists in Ukraine
since 1991) (see Gongadze
v. Ukraine, cited above, § 168).
- The
Court relies on the domestic courts’ findings which demonstrate
that the applicant company accurately reported on the intervention of
Mr M. during the press conference without distorting it. Furthermore,
the applicant company presented the information in a neutral manner,
without adding their own commentary or undue emphasis, in the context
of a wider report on the press conferences related to the mayoral
elections in Kirovograd. The domestic courts, however, failed to
distinguish between the accusation made by Mr M. and the reporting on
such accusation by the applicant company and found them jointly and
equally liable for the statement that did not emanate from the
applicant company but was clearly identified as that proffered by
another person. The domestic courts thus failed to explain whether
the defamation ascribed to the applicant company lay in the contents
of the reported accusation, or in the fact that the applicant company
had made it (see paragraph 11 above). The Court notes that the
domestic law exempts the media from liability under certain
conditions where they have published untrue information. It is not,
however, clear why this issue had been so extensively discussed by
the domestic courts in the present case because they had themselves
established that the information as disseminated by the applicant
company was true.
- The
Court finds no evidence that the domestic courts in their judgments
performed the balancing exercise between the need to protect the
reputation of Mr Y. and the applicant company’s right to
divulge information of public interest in the context of election
debates. They did not provide sufficient reasons for putting Mr M.
who had made a defamatory statement and the applicant company, who
had reported about it, on equal footing and for disregarding the fact
that the impugned information had been widely disseminated prior to
the publication by the applicant company. Neither did they discuss
the proportionality of the interference and the fact that the
applicant company had offered to the plaintiff the possibility to
reply to the impugned publication.
- In
such circumstances, the Court considers that the Ukrainian courts
interfered with the applicant company’s right to freedom of
expression in a manner which was not necessary in a democratic
society.
- Accordingly,
the Court concludes that there was a breach of Article 10 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant company claimed 9,675.57 euros (EUR) in respect of
pecuniary damage, which comprised the amount paid by it to the
plaintiff in the defamation proceedings plus the enforcement fee
charged on it together with the amount of inflation losses. It also
claimed EUR 20,000 in respect of non-pecuniary damage, contending
that the above-mentioned fine had caused financial difficulty, which
had led to the resignation of journalists, a price increase and a
decrease in its circulation.
- The
Government maintained that there was no causal link between the
alleged violations and the pecuniary damage claimed by the applicant
company, given that no violation of Article 1 of Protocol No. 1 had
been alleged in the present case. They disagreed with the applicant
company’s calculation of inflation losses, considering it to be
general and not supported by any documents. As to non-pecuniary
damage, the Government noted that the applicant company was an
economic entity and its claim for non-pecuniary damage was
unsubstantiated.
- The
Court is satisfied that there is a causal link between the pecuniary
damage claimed and the violation of the Convention found above. The
applicant company, however, have submitted no official documents to
confirm the accuracy of their calculations as to the inflation losses
claimed. The Court therefore awards the applicant company EUR 8,400
which corresponded to UAH 52,500, the amount paid in October 2003 by
the applicant company under the judgment of 10 December 2002. It
rejects the remainder of the applicant company’s claim for
pecuniary damage. Furthermore, with due regard to the size of the
applicant company and its local status, on one hand, and the amount
of the compensation against it, on the other hand, as well as the
chilling effect of the defamatory proceedings against it, the
Court finds that the circumstances of the present case call for an
award of non-pecuniary damage to the applicant company.
Acting on equitable basis, the Court awards it EUR 5,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant company also claimed EUR 870 for the costs and expenses
incurred before the Court.
- The
Government maintained that those claims were not sufficiently
detailed. Furthermore, the applicant company submitted no
confirmation that it had actually paid the expenses for translation.
- According
to the Court’s case-law, an applicant company is entitled to
the reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 830 covering costs
for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant
company, within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, EUR 8,400 (eight thousand four hundred euros) in
respect of pecuniary damage, EUR 5,000 (five thousand euros) in
respect of non-pecuniary damage and EUR 830 (eight hundred
thirty euros) in respect of costs and expenses, plus any tax that may
be chargeable to the applicant company, to be converted into
Ukrainian hryvnias at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant
company’s claim for just satisfaction.
Done in English, and notified in writing on 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
