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FIFTH
SECTION
CASE OF LYASHKO v. UKRAINE
(Application
no. 21040/02)
JUDGMENT
STRASBOURG
10
August 2006
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 Lyashko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
judges,
and Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 10 July 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21040/02) 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 national, Mr Oleg Valeriyovych
Lyashko (“the applicant”), on 18 April 2002.
- The
applicant was represented by Ms Natalya Petrova, a lawyer practising
in Kyiv. The Ukrainian Government (“the Government”) were
represented by their Agent, Ms Valeria Lutkovska.
- On
3 February 2005 the Court decided to communicate the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- On
1 April 2006 this case was assigned to the newly constituted Fifth
Section (Rule 25 § 5 and Rule 52 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Kyiv.
- The
applicant was an editor-in-chief of the Ukrainian daily newspaper
Polityka. The periodical has ceased publication.
1. Newspaper articles, published by the applicant
- On
2 July 1997 the applicant published an article about Mr V. Durdynets,
who at that time was the acting Prime Minister of Ukraine. The
article was entitled “Durdintsovshchina” (the
first article) and described the dismissal of Mr A. Stoginenko, the
President of the Black Sea Shipping Company (Чорноморське
морське пароплавство,
hereinafter the “BSSC”), a State-owned enterprise. The
applicant alleged that Mr Durdynets dismissed Mr Stoginenko
because of his involvement in financing the Polityka. The
relevant extracts from the article were as follows:
“Who could imagine that a former Komsomol
bureaucrat, police pen-pusher and near-political schemer would occupy
today one of the highest posts in the Government? The press is what
the sinister Premier hates the most, as he fears public opinion. He
did not forget that in March this year our newspaper accused him of
plotting against Prime Minister Lazarenko. And as soon as he got the
chance, he triggered the punitive mechanisms to suppress the
independent media. For instance, he accused Alekzandr Stroginenko,
the President of the Black Sea Shipping Company, of financing
Polityka. Stroginenko’s “error” was that he had
concluded a contract with us to issue promotional materials for the
BSSC. The newspaper spent tens of thousand dollars from its own
pocket, but has not yet received full payment for the published
materials.
Without waiting for the results of a ministerial
inquiry, on Monday before last, the acting Prime Minister, in
the absence of both the President, who was in New York, and the Prime
Minister, who was hospitalised, summoned the Cabinet of Ministers and
forced a decision to dismiss the president of the BSSC.”
- On
16 July 1997 the applicant published an article entitled “Save
the barbed wire, citizen Durdinets” (Экономьте
колючую
проволку,
гражданин
Дурдинец
– the second article), where he stated that Mr Durdinets
had personally instructed the General Prosecutor to institute
criminal proceedings against him. The relevant extracts from the
article read as follows:
“...As we have learned, immediately after the
release of the article [Durdintsovshchina], Durdinets summoned
the General Prosecutor, Grigory Vorsinov, to his office and, showing
him the newspaper, demanded that criminal proceedings for defamation
be instituted against the author... Any other person, who considers
himself to be defamed or insulted, would go to a court of law to make
his case publicly. But Durdinets has no regard for civil rights as he
attempts to use his powers as a high ranking governmental official.
So it is worth mentioning here the abuse of power, as neither
I nor any of our readers can summon Vorsinov to his office, the less
so to demand the institution of criminal proceedings against one’s
opponent. The acting Prime Minister considers that he can give orders
to the General Prosecutor (although the law provides for the
independence of the latter), and he does so.”
- On
5 November 1997 the applicant wrote an article under the headline
“The Rogue and the General” (“Аферист
и генерал”
– the third article), which concerned the alleged
relationship between General G., at that time the Chief of the Odessa
Regional Police Department, and a certain Mr S., who was reported to
have been involved in criminal activity. The applicant’s
newspaper also published several photographs in which the police
chief and Mr S. were pictured together. It appears that these
pictures were made during a private occasion and were subsequently
published by the paper and TV media (see paragraph 15 below).
The
article stated, inter alia, that:
“An ... inquiry revealed that ... S. was never
employed by the Tax Police. The person who had blackmailed [local
businessmen] was a former police officer, S., and the photographs
[which he had showed to prove his authority] contained images of high
officials of the Odessa Regional Police Department.
But where did the ex-policeman ... get the photographs
of G. and his deputies drinking with him and hugging him? Now
he is showing these photographs to [businessmen] and thereby
collects money for ... life.
The examination of this relationship clarifies the
statements of S. ... that ‘they will stand for me ...’.
This story seems to prove the corruption in the Odessa
Regional Police Department we were writing about.”
- On
19 November 1997 the applicant published an article entitled “The
Rogue and the General turn out to be relatives” (“Аферист
и генерал
оказались
родственниками”
– the fourth article), in which he recited the interview of
certain Ms K. to a local TV station to the effect that the Chief of
Police and Mr S. were distant relatives:
“The scandal surrounding the head of the Odessa
Regional Police Department, General G., continues. Condemned by the
press for having patronised criminals, the General stands on firm
ground so far.
When we published ‘The Rogue and the General’,
we did not know that S. and Grigorenko were brothers-in-law. ... The
unlawful activity of S. is blessed by the figure of General G....”
2. Criminal proceedings against the applicant
- On
7 July 1997 the Head of the Parliamentary Committee for Law and Order
tabled a written question to the General Prosecutor raising concern
as to the publications defaming the acting Prime Minister Durdynets.
In July 1997 the General Prosecutor’s Office (hereinafter
“the GPO”), referring to the extracts from his
articles quoted above, charged the applicant with intentional
defamation in print (Article 125 § 2 of the Criminal Code of
1961), an unfounded accusation of committing a serious crime (Article
125 § 3) and abuse of power (Article 165).
- On
9 December 1999 the Pechersky District Court of Kyiv acquitted the
applicant for lack of corpus delicti. However, in November
2000 the Kyiv City Court, on the prosecutor’s appeal, quashed
this decision and remitted the case for fresh consideration.
- On
7 June 2001 the Minsky District Court of Kyiv (hereinafter “the
Minsky Court”) found the applicant guilty as charged. In the
introductory part of the judgment the court noted the personal data
of the applicant and, inter alia, stated that he was
“previously unconvicted” (раніше
не судимий).
- With
respect to the first and second articles, the court indicated that
the applicant, having abused his office, published intentionally
false and malicious statements to the effect that Mr Durdynets had
persecuted the Polityka, had unlawfully dismissed Mr
Stoginenko for his financing the newspaper and had summoned the
General Prosecutor to his office with a view of giving him an order
to institute criminal proceedings against the applicant.
- As
regards the third and fourth articles, the Minsky Court stated that
the applicant, again abusing his office, had intentionally defamed
the law enforcement agencies of Ukraine by publishing libellous and
false information regarding General G., namely that Mr S. was
involved in criminal activity and that Mr G. had had illegal links
with this person. The court found that the statements that Mr S.,
aided and abetted by General G., had extorted money from local
businessmen and that they were family related were false and
offensive. This conclusion was made on the basis of, inter alia,
testimonies of S. and a witness Z. who stated that the photographs,
published by the Polityka, were taken at a private party, but
somehow made their way to the paper and TV media. The police
officers, who had investigated the complaints of the businessmen
about the alleged extortions, also gave oral evidence, stating that
the proceedings in the case were terminated on the early stage of the
pre-trial investigation due to the lack of any corpus delicti.
- The
Minsky Court concluded that the applicant, as an editor-in-chief, was
directly liable for any abusive material published in the
newspaper. Using his office, the applicant had intentionally
published false statements aimed at defaming the police in revenge
for a certain unspecified previous conviction.
- The
applicant was convicted of abuse of power, intentional defamation in
print and an unfounded accusation of committing a grave offence and
sentenced to two years’ imprisonment on probation and a two
years prohibition on occupying posts involving media management.
- On
18 October 2001 the Kyiv City Court of Appeal upheld the
applicant’s conviction in substance, indicating that the fact
that the imputed offences had been committed was proved by a wide
range of evidence, collected by the prosecution. In particular, the
court came to the conclusion that the applicant had made
intentionally false and offensive statements concerning the unlawful
dismissal of Mr Stoginenko and Mr Durdynets’ summons of the
General Prosecutor to his office, the criminal activity of S. and his
liaisons with General G., thus committing offences under Articles 125
and 165 of the Criminal Code, 1961. However, the appellate instance
quashed the applicant’s sentence for intentional defamation in
print and an unfounded accusation of committing a grave offence as
these offences had been decriminalised by the new Criminal Code
adopted in 2001. As regards the third offence imputed to the
applicant – abuse of office – the applicant was exempted
from punishment on account of expiry of the statutory limitation
period.
- On
23 July 2002 the Supreme Court upheld the decision of the Kyiv City
Court of Appeal.
II. RELEVANT DOMESTIC LAW
1. Constitution of Ukraine of 1996
- Relevant extracts from the Constitution read as
follows:
Article 32
“... Everyone is guaranteed judicial protection of
the right to rectify incorrect information about himself or herself
and members of his or her family, and of the right to demand that any
type of information be rectified, and also the right to compensation
for material and moral damage inflicted by the collection, storage,
use and dissemination of such incorrect information.”
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.”
2. The Criminal Code of 1961
- The
text of Article 125 of the Code was as follows:
Defamation [Наклеп],
namely the intentional dissemination of falsehoods aimed at damaging
the reputation of another shall be punishable by ...
Defamation
in print ... shall be punishable by up to three years’
imprisonment or a fine from 50 to 100 minimal monthly salaries.
Defamation
linked with an unfounded accusation of committing a grave offence
shall be punishable by up to five years’ imprisonment.
Article
165 of the Code provided as follows:
Abuse
of power or office, namely intentional, lucrative or with other
personal interest or the interest of third persons, use by official
of his/her power or office against the interest of service, if it
caused serious damage to the State or public interests or to lawful
interests of natural or legal persons shall be publishable by between
two and five years’ imprisonment or by up to two years’
correctional labour with up to three years’ prohibition of
employment in certain occupations.”
3. The Criminal Code of 2001
- Article
364 of the Code provides that:
Abuse
of power or office, namely intentional, lucrative or with other
personal interest or the interest of third persons, use by official
of his/her power or office against the interest of service, if it
caused serious damage to the State or public interests or to lawful
interests of natural or legal persons shall be publishable by up to
two years’ correctional labour or by up to six months’
arrest or by up to three years’ limitation of freedom with up
to three years’ prohibition of employment in certain
occupations.”
4. The Code of Criminal Procedure
- The
text of Article 27 of the Code (hereafter “the CCP”), as
worded until 21 June 2001, was as follows:
“The cases concerning crimes stipulated in
Articles 125 ... of the Criminal Code of Ukraine, if the damage is
caused to the rights and interests of citizens are instituted only
upon the complaint of the victim, who conducts the prosecution in
court. In such cases there is no pre-trial investigation.
...If the case concerning any crime referred to in
paragraph 1 of this Article has special public interest ...the
prosecutor may institute the case in absence of the victim’s
complaint. The case instituted by the prosecutor should be sent to
the pre-trial investigation and, thereafter, is tried under the
general rules.”
5. The Law “on Prosecution” of 1991
- Article
17 of the Law provides that the General Prosecutor’s Office is
staffed with “senior investigators for particularly serious
cases” and “investigators for particularly serious
cases”.
- Further
relevant material regarding the state of freedom of press in Ukraine
at the material time may be found in the judgment of 29 March 2005 in
the case of Ukrainian Media Group v. Ukraine (no. 72713/01,
§§ 18-22 and 25-26).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his trial and conviction constituted an
unjustified interference with his right to freedom of expression. He
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...
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.”
II. SCOPE OF THE CASE
- The
Court observes that further new complaints were submitted after the
communication and in response to the Government’s objections as
to the admissibility and merits of the application and concerned
multiple oppressions from the authorities, allegedly suffered by the
applicant and his newspaper before, during and after the impugned
criminal trial. In particular he stated that publishing houses were
pressed not to publish the Polityka, that between July 1999
and February 2000 the publication of the newspaper was prohibited by
the court injunction and that in March-April 2002 another criminal
case was instituted against the applicant regarding an article about
Mr Potebenko (at that time the General Prosecutor). Charges in the
latter case were dropped in December 2004.
- The
Government made no comments.
- In
the Court’s view, the new complaints are not an elaboration of
the applicant’s original complaint to the Court about the
criminal proceedings concerning the four articles published in the
Polityka newspaper in July-November 1997 on which the parties
have commented. The Court considers, therefore, that it is not
appropriate now to take these matters up separately (cf. Piryanik
v. Ukraine, no. 75788/01, § 20, 19 April 2005).
III. ADMISSIBILITY
- The Government argued that the applicant could not
claim to be a victim of the alleged violation within the meaning of
Article 34 of the Convention. They maintained that since the charges
against the applicant were dismissed on appeal and the applicant
received no criminal record, neither his professional life nor his
freedom of expression was impaired by the criminal proceedings in
issue.
- The applicant submitted that as the result of five
years of criminal persecution he had suffered severe stigma and
distress and incurred significant expenses. The lengthy trial placed
restrictions on the exercise of his professional activity and
obstructed the publication of the newspaper.
- The
Court observes that a criminal prosecution was brought against the
applicant. Although he was eventually exempted from punishment, this
was at partially for the technical reason that the prosecution was
time barred and partially due to the enactment of the new Criminal
Code, which decriminalised two of three offences imputed to the
applicant (see paragraph 18 above). In fact, the appellate court
upheld the applicant’s conviction for abuse of power in
substance but absolved him from punishment on the non-exonerating
grounds. The decision of 18 October 2001 was couched in terms which
left no doubt as to the court’s view that the applicant had
committed the one of the offences with which he was charged (see
paragraph 18 above). The courts’ decisions, therefore, gave a
strong indication to the applicant that the authorities were
displeased with the publications and that, unless he modified his
behaviour in future, he would run the risk of being prosecuted again
for abuse of office, which, unlike two other offences imputed to the
applicant, remained punishable by the new Code (paragraph 22 above).
- In
these circumstances, the Court considers that the applicant could
properly claim to have been directly affected by the criminal
proceedings in issue and, therefore, to be the victim of a violation
of the Convention (see Bowman v. the United Kingdom, judgment
of 19 February 1998, Reports of Judgments and Decisions 1998 I,
§ 29).
- The
Court notes that the application 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.
IV. MERITS
A. Arguments of the parties
1. The Government
- The
Government conceded that there was an interference with the
applicant’s rights under Article 10 of the Convention. However,
they considered that this measure was lawful, having its basis in
Article 124 of the Criminal Code, Article 47 of the Law on
Information and Article 26 of the Printed Media Act and pursued a
legitimate aim, namely the protection of the reputation and rights of
others.
- As
regards the proportionality of the impugned measure, the Government
maintained that the “interference” complained of was
necessary in a democratic society as it corresponded to a “pressing
social need”. In that they pleaded that during the trial it was
proved that the applicant’s publications did not concern any
matter of public interest but rather contained intentionally false
information and tended to damage the reputation of high ranking State
officials. Referring to the Court’s case-law on the question,
the Government emphasised that the press should not overstep the
limits of acceptable criticism. In accusing the police officer
concerned of being involved in criminal activity the applicant had
not only damaged his reputation but had also undermined public
confidence in the police.
- The
Government also indicated that the punishment imposed on the
applicant following his conviction (two years’ imprisonment on
probation and a two year’s prohibition on occupying posts
involving media management) was proportionate to the aims pursued. In
their submissions the Government also recalled that, in any case, the
applicant was absolved from serving the sentence passed upon him as
it was quashed by the Court of Appeal.
2. The applicant
- The
applicant stated that protection of the reputation and rights of
others cannot be invoked as an aim in the present case, since the
victims of the alleged offences were entitled under domestic law to
bring civil cases for libel or to seek institution of “private
prosecution” proceedings if they considered themselves insulted
by the impugned publications. However, in the present case the
criminal investigation was instituted by the GPO following the
parliamentary inquiry of one of the Prime Minister’s political
allies. Thus, the measure in question was not motivated by any
legitimate considerations, but represented an attempt to intimidate
an independent journalist.
- The
applicant also maintained that the four articles concerned issues of
general interest. He pointed out that the dismissal of Mr Stoginenko
without calling him out to the Cabinet’s meeting did take
place; that several businessmen in Odessa did complain to the
Regional Police Department about extortions by the former police
officer S. and that the subsequent police inquiry confirmed the
alleged facts. The political issues affecting the management of one
of the Ukrainian key shipping companies and corruption in the police
undoubtedly constituted subjects of serious public debate.
- The
applicant is further of the view that his conviction was based
primarily on the testimonies of the alleged victims and did not
establish beyond the reasonable doubt their innocence of involvement
in the corrupt practices referred to in the articles.
B. The Court’s assessment
1. General principles
- The
Court reiterates the following fundamental principles in this area:
(a) Freedom
of expression constitutes one of the essential foundations of a
democratic society and one of the basic conditions for its progress
and for each individual’s self-fulfilment. Subject to paragraph
2 of Article 10, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no “democratic
society”. As set forth in Article 10, this freedom is subject
to exceptions, which must, however, be construed strictly, and the
need for any restrictions must be established convincingly (cf.,
Jersild v. Denmark, judgment of 23 September 1994, Series
A no. 298, p. 23, § 31; Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I; Nilsen and Johnsen v. Norway
[GC], no. 23118/93, § 43, ECHR 1999-VIII; and Fuentes
Bobo v. Spain, no. 39293/98, § 43, 29 February 2000).
(b) 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 (see De Haes
and Gijsels v. Belgium, judgment of 24 February 1997, Reports
1997-I, pp. 233-34, § 37 and, mutatis mutandis,
Cumpǎnǎ and Mazǎre v. Romania
[GC], no. 33348/96, §§ 92-110, ECHR 2004 ...). Not
only does it have the task of imparting such information and ideas:
the public also has a right to receive them. Were it otherwise, the
press would be unable to play its vital role of “public
watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment
of 25 June 1992, Series A no. 239, p. 27, § 63). Article 10
protects not only the substance of the ideas and information
expressed, but also the form in which they are conveyed (see
Oberschlick v. Austria (no. 1), judgment of 23 May
1991, Series A no. 204, p. 25, § 57). Journalistic freedom also
covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, judgment
of 26 April 1995, Series A no. 313, p.
19, § 38, and Thoma v. Luxembourg, no. 38432/97,
§§ 45 and 46, ECHR 2001-III).
(c) Freedom
of the press affords the public one of the best means of discovering
and forming an opinion of the ideas and attitudes of political
leaders. More generally, freedom of political debate is at the very
core of the concept of a democratic society which prevails throughout
the Convention. The limits of acceptable criticism are accordingly
wider as regards a politician as such than as regards a private
individual. Unlike the latter, the former inevitably and knowingly
lays her- or himself open to close scrutiny of his every word and
deed by both journalists and the public at large, and he must
consequently display a greater degree of tolerance (see Lingens v.
Austria, judgment of 8 July 1986, Series A no. 103, § 42).
(d)
The limits of acceptable criticism may in some circumstances be wider
with regard to civil servants exercising their powers than in
relation to private individuals. It cannot be said, however, that
civil servants knowingly lay themselves open to close scrutiny of
their every word and deed to the extent to which politicians do and
should therefore be treated on an equal footing with the latter when
it comes to criticism of their actions. Civil servants must enjoy
public confidence in conditions free of undue perturbation if they
are to be successful in performing their tasks. It may therefore
prove necessary to protect them from offensive and abusive verbal
attacks when on duty (see Janowski, cited above, § 33 and
Nikula v. Finland, no. 31611/96, § 48,
ECHR 2002 II).
(e) Moreover a clear distinction has to be made between
statements of fact and value judgments. While the existence of facts
can be demonstrated, the truth of value judgments is not susceptible
of proof. The requirement to prove the truth of a value judgment is
impossible to fulfil and infringes freedom of opinion itself, which
is a fundamental part of the right secured by Article 10
(see Lingens, cited above, p. 28, § 46).
(f) The
nature and severity of the penalty imposed are also factors to be
taken into account when assessing the proportionality of the
interference (cf., Ceylan v. Turkey [GC], no. 23556/94, §
37, ECHR 1999-IV, and Tammer v. Estonia, no. 41205/98, §
69, ECHR 2001-I). Furthermore, the dominant position which the
Government occupies makes it necessary for it to display restraint in
resorting to criminal proceedings, particularly where other means are
available for replying to the unjustified attacks and criticisms of
its adversaries or the media. Nevertheless it remains open to the
competent State authorities to adopt, in their capacity as guarantors
of public order, measures, even of a criminal law nature, intended to
react appropriately and without excess to defamatory accusations
devoid of foundation or formulated in bad faith (see Castells v.
Spain, judgment of 23 April 1992, Series A no. 236, §
46).
2. Application of the above principles in the present
case
- The
Court recalls that in the present case the applicant, following a
five-year long trial, was found guilty of defaming an acting Prime
Minister and a high-ranking police official in four newspaper
articles and abusing power, but was not punished as the former
offence was decriminalised and the latter one was time barred.
- The
Court notes that the conviction incontestably amounted to an
interference with the applicant’s exercise of his right to
freedom of expression. The question arises whether such interference
can be justified under the second paragraph of Article 10. It
therefore falls to be determined whether the interference was
“prescribed by law” and had a “legitimate aim”
for the purposes of that paragraph and was “necessary in a
democratic society”.
a. Whether the measure was prescribed by
law and pursued a legitimate aim
- The
applicant stated that the contested prosecution was unlawful and
unjustified as the prosecution had been initiated by the GPO, whereas
the alleged victims of the defamation were free to bring a civil or
private criminal action against him.
- The
Court notes that the competent courts based their decisions on
Articles 125 and 165 of the Criminal Code (paragraphs 11 and 13
above). The public prosecution’s participation in the
proceedings was based on, inter alia, Article 27 of the CCP.
As regards the applicability of the latter provision in the present
case it should be noted that its wording provided that the instances
of “special public interest” could attract the
participation of the prosecution authorities in the criminal
proceedings for defamation (paragraph 19 above). Since the applicant
does not dispute the presence of such “special public interest”
in this case, his allegations concerning the victims’
possibility to resort to alternative remedies has no bearing on the
fact that the impugned measure was sufficiently foreseeable for the
purpose of Article 10 § 2 of the Convention. It was moreover
designed to protect “the reputation or rights of others”
and there is nothing to show that it had any other purpose.
- The
conviction was accordingly “prescribed by law” and had a
legitimate aim under Article 10 § 2 of the Convention.
b. Proportionality
- The
Court must next verify whether the interference was justified and
necessary in a democratic society, and in particular whether it was
proportionate and whether the reasons given by the national
authorities in justification for it were relevant and sufficient. It
is thus essential to determine whether the national authorities made
proper use of their power of appreciation in convicting the applicant
of defamation and abuse of power.
- The
Court is not convinced by the Government’s argument that the
information was not a matter of public interest. The first two
articles were dedicated to the issues of management of the Black Sea
Shipping Company, a State company, which at the material time was a
subject of a number of commercial disputes, widely reported in the
press and, by implication, to the redistribution of authority after
the fall of a former Prime Minister Lazarenko (see paragraph 7
above). The third and fourth articles concerned corruption in the
police, a matter of general concern in Ukrainian media. They
described alleged links between a person under investigation and the
Chief of Police, provoking, or else being provoked by the wide media
coverage of this story in the local media (see paragraphs 9 and 10
above).
- In
the first article the applicant was concerned with the new Prime
Minister’s attitude towards the free press and the second must
be seen as its continuation. As stated in the third article it was
dedicated to the “corruption in the Odessa Regional Police
Department” with the furtherance of this theme in the fourth.
The Court finds no reason to doubt these intentions. In particular,
there is no evidence that the applicant was in any way prejudiced
against the subjects of his articles. Admittedly, although the Minsky
Court in its judgment of 7 June 2001 mentioned the applicant’s
certain former conviction as a reason for bias towards the police, in
the introductory part of this judgment the applicant was defined as
“previously unconvicted person” (see paragraph 13 above).
In any case it is unsubstantiated that the applicant was unduly
influenced in his activity as an editor-in-chief by a former
conviction.
- As
regards the first two articles, the applicant was convicted because
he had allegedly disseminated false information that Mr Durdinets had
unlawfully, out of personal bias dismissed Mr Stoginenko and called
out the General Prosecutor to give an order to prosecute the
applicant. The Court notes that the fact that Mr Stoginenko was
dismissed without a hearing by the Cabinet has never been questioned
by the Government as well as the applicant’s assertion that
such dismissal was a violation of the procedure then in force. It
should further be noted that the articles were written during the
political turmoil triggered by the transfer of power from the former
Prime Minister Lazarenko to his successor.
Therefore,
the applicant’s assertions that the dismissal in issue was
unlawful and caused by personal bias on the part of Mr Durdynets are
value judgments used in the course of public debate which are not
susceptible of proof.
- The statement contained in the second article about
the alleged meeting between Mr Durdynets and the General Prosecutor,
was based on the fact that it was the GPO that instituted proceedings
against the applicant and was made when the applicant was apparently
ignorant as to the parliamentary question that had triggered the
investigation. Admittedly, where allegations are made about the
conduct of a third party, it may sometimes be difficult, as in the
instant case, to distinguish between assertions of fact and value
judgments. Nevertheless, even a value judgment may be excessive if it
has no factual basis to support it (see Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001-II). The Court considers that the
applicant’s view must be seen in the content of the GPO’s
involvement in his case, although this body is usually entrusted with
investigation of “particularly serious cases” (see
paragraph 24 above). The Court finds that the applicant’s
statement, at the time and in the circumstances it was made, cannot
be considered as devoid of any reasonable foundation. Moreover, the
very scene of the alleged meeting between the Prime Minister and the
General Prosecutor was described in sarcastic and broad terms and
could be understood by readers as having been presented with a degree
of exaggeration (see, mutatis mutandis,
Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 67, ECHR 1999 III)
- It
should further be noted that the third and fourth articles alluded to
Mr S., a private person. However, as it transpires from the court
decisions, the applicant was convicted mainly for having published
defaming material regarding Mr Durdynets and General G., whereas
the violation of the right of Mr S. to private life was considered
rather as a “side effect” of the applicant’s
“unlawful” activity, which alone could not attract the
GPO’s involvement in the proceedings or the applicant’s
conviction for abuse of power. The more so since, according to his
own testimonies, the activity of Mr S. and his alleged bonds with
General G. were reported by, inter alia, the local TV
stations, thus the applicants’ articles could not be considered
as the only or even the major intrusions into his privacy (see
paragraphs 10 and 15 above).
- Insofar
as the applicant’s conviction for the third and fourth articles
is concerned, it is to be noted that the trial court found that the
statements that Mr S. with help from General G. had extorted money
from local businessmen and that Ms S. and General G. were relatives
were untrue. The Court notes that the articles took as their
starting-point a criminal case instituted against S. for extortion.
As transpires from the June 2001 judgment of the Minsky Court this
event did actually occur. The remainder of the factual elements
referred to in the articles emanated from persons other than the
applicant, namely the said businessmen, whose complaints commenced an
investigation into the matter. Moreover, this information was to some
extent supported by the pictures published in the applicant’s
newspaper and broadcasted over the local TV stations. The interview
of Ms K. shown on local TV was the source for the
applicant’s allegation that Mr S. and General G. were distant
relatives (see paragraph 15 above).
The
statement that “the unlawful activity of S. is blessed by the
figure of General G.” was a value judgment which, in the
circumstances, cannot be said to be devoid of any arguable basis.
- The
Court also notes that there are no factual elements to show that the
articles in issue were motivated by the applicant’s deliberate
intention to damage the reputation of the persons concerned or the
police force in general.
- In
short, the applicant was essentially reporting what was being said by
others, or what could be reasonably inferred from the events that
have undisputedly taken place. In so far as the applicant was
required to establish the truth of his statements, he was, in the
Court’s opinion, faced with an unreasonable, if not impossible
task (see, mutatis mutandis, Thorgeir Thorgeirson,
cited above, § 65).
- The
Court accepts that all four articles were framed in a particularly
strong terms. However, having regard to the fact that they were
written on matters of serious public interest and concerned public
figures and politicians, the Court is of the opinion that the
language used cannot be regarded as excessive.
- The
Court finds that the applicant’s conviction and sentence to two
years’ imprisonment and a prohibition on occupying posts in
media management, imposed following a trial lasting several years
could have had a considerable “chilling effect” on the
applicant’s freedom of expression, which cannot be said to be
substantially mitigated by the decision of the appeal court given the
fact that his conviction was upheld in substance and that he was not
punished at least partially because of procedural reasons and partly
due to the decriminalisation of the imputed offences in the new
Criminal Code.
- Having
regard to the foregoing, the Court has come to the conclusion that
the reasons advanced by the Government do not suffice to show that
the interference complained of was proportionate to the legitimate
aim pursued. It was therefore not “necessary in a democratic
society”.
- Accordingly,
there has been a violation of Article 10 of the Convention.
II. 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 claimed 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government considered this amount exorbitant and unsubstantiated.
- Making
its assessment on equitable basis, as required by Article 41 of the
Convention, the Court considers it reasonable to award the applicant
a global sum of EUR 2,000 in respect of damages.
B. Costs and expenses
- The
applicant claimed UAH 24,000 (EUR 3,840) for the costs and
expenses incurred in the Convention proceedings.
- The
Government did not comment on this issue.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that they
were actually and necessarily incurred in order to prevent or obtain
redress for the matter found to constitute a violation of the
Convention and were reasonable as to quantum (see Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR
1999-VIII). In the present case the Court finds excessive the total
amount which the applicant claims in respect of his legal costs and
expenses and considers that it has not been demonstrated that they
were necessarily and reasonably incurred.
- In
these circumstances, the Court is unable to award the totality of the
amount claimed; deciding on an equitable basis it awards him the sum
of EUR 1,000 in respect of costs and expenses, plus any tax that
may be chargeable on that amount.
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
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
amounts:
(i) EUR
2,000 (two thousand euros) in respect of pecuniary and non-pecuniary
damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
the above amounts shall be converted into the national currency of
the respondent State at the rate applicable at the date of
settlement;
(c) 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’s
claim for just satisfaction.
Done in English, and notified in writing on 10 August 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
