Strasbourg finds Ukraine violated the right to a fair trial and freedom of speech
In its ruling on 15 July in the case of Gazeta Ukraina-Tsentr v. Ukraine, the European Court of Human Rights found that there had been a violation of Article 6 § 1 and Article 10 of the European Convention on Human Rights.
The application (no. 16695/04) was lodged by the Ukrainian company, Gazeta Ukraina-Tsentr on 1 January 2004. The company was represented by Ms L. Opryshko and Ms L. Pankratova, lawyers practising in Kyiv.
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 during elections for Mayor of Kirovograd, two press conferences relating to those elections were held at the Ukrainian Independent News Agency 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). This information along with other news was disseminated by 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.
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 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 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 UNIAN, which had been identified as a co-defendant by the court, because the plaintiff had lodged no claims against it and 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.
13. 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.
16. On 30 October 2003 the applicant company paid the compensation awarded against it and UAH 2,500 in enforcement fees.
26. 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.
27. 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.
28. 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).
29. 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).
30. 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.
31. 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).
32. 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).
33. 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.
34. 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.
35. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
36. 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
1. The arguments of the parties
a. The applicant company
38. 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.
39. 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.
40. 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.
41. 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
42. 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.
43. 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.
44. 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.
45. 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
46. 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
47. 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
48. 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.
49. 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”
50. 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.
51. 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).
52. 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.
53. 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.
54. 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.
55. Accordingly, the Court concludes that there was a breach of Article 10 of the Convention.
THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds that there has been a violation of Article 10 of the Convention;
(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;
The full judgment is available here http://cmiskp.echr.coe.int/tkp197/view.asp?item=93&portal=hbkm&action=html&highlight=Ukraine&sessionid=58050628&skin=hudoc-en