Strasbourg rules in favour of Ukrainian teacher
The European Court of Human Rights on Thursday notified of its Chamber judgment in the case of Marchenko v. Ukraine (application no. 4063/04). The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights concerning the conviction of Mr Marchenko, a teacher, for defamation of the director of his school.
He was awarded 1,000 EUR in respect of pecuniary and non-pecuniary damage and EUR 50 for costs and expenses.
Mykhaylo Marchenko is a teacher and head of a trade union in the school where he works.
Following allegations against the director of Mr Marchenkos school concerning misuse of school property, Mr Marchenko applied several times in early 1997 to a public auditing service responsible for examining the use of funds by State-owned entities. Mr Marchenko alleged in particular that the director had misappropriated humanitarian aid given to the school, had used the school car, TV set and video equipment for private purposes and had taken bricks from one of the schools walls.
The public auditing service found no evidence to suggest misappropriation of school property by the director. In 1997 Mr Marchenko made two criminal complaints against the director, both of which were dismissed for lack of evidence.
In May 1997, several representatives of Mr Marchenkos trade union organised a picket at the local administration offices; they had banners with slogans which accused the director of professional misconduct.
The director brought a private prosecution against Mr Marchenko; the charges were modified in the course of the investigation but ultimately, in November 1999, he was indicted for false accusation of serious crimes and insult, and was given access to his case file.
In June 2001 the domestic courts found him guilty as charged and gave him a suspended one-year sentence and a fine for publicly and unfoundedly accusing the director of the school for misappropriating public funds.
Summary of the judgment
Relying on Article 6 §§ 1 and 3 (a) and (b) (right to a fair hearing) and Article 10 (freedom of expression), Mr Marchenko complained of his conviction for defamation, as well as of having been found guilty of an offence with which he had not been charged.
Decision of the Court
The Court first noted that Mr Marchenko, despite being a union representative acting on a matter of public concern, had a duty to respect the reputation of others, including their presumption of innocence, and owed loyalty and discretion to his employer. The Court further observed that Mr Marchenko should have made his allegations first to the directors superior, or other competent authority, before disclosing them to the public. The Court then noted that Mr Marchenko had not attempted to use the legal means available to challenge what he considered ineffective investigation by the public auditing service and the prosecutor into his allegations, but had instead accused the director harshly during a public picket. It therefore found that Mr Marchenkos conviction for defamation was justified by the authorities as far as his picketing activities were concerned, because his accusations had lacked sufficient proof, could reasonably have been considered as defamatory and had undermined the directors right to be presumed innocent until proven otherwise.
Given, however, that the domestic courts had sentenced Mr Marchenko to a year in prison for these acts, the Court concluded that that had been an excessive measure, which had had a dissuasive effect on public debate, in violation of Article 10.
The Court declared inadmissible Mr Marchenko complaints under Article 6, as it found in particular that he had not made out a valid claim before the Court that he had not been informed properly of the criminal charges against him.
The full chamber judgment can be found at: http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-pr-en