03/31/2005 | ziggy_freud

Газеті "День" дозволили критику Симоненка і Вітренко. Держава виплатить компенсацію за неправосудне рішення.

http://www.echr.coe.int/Eng/Press/2005/March/ChamberjudgmentUkrainianMediaGroupvUkraine290305.htm

158
29.3.2005

Press release issued by the Registrar

CHAMBER JUDGMENT

UKRAINIAN MEDIA GROUP v. UKRAINE



The European Court of Human Rights has today notified in writing a judgment[1] in the case of Ukrainian Media Group v. Ukraine (application no. 72713/01).

The Court held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 588.12 euros (EUR) for pecuniary damage, EUR 33,000 for non-pecuniary damage and EUR 5,521.07 for costs and expenses. (The judgment is available only in English.)

1. Principal facts

The applicant, the CJSC “Ukrainian Media Group” (ЗАТ “Українська Прес-Група”), is a privately-owned legal entity, based in Kiev. It owns a daily newspaper, The Day (газета “День”).

The case concerns two articles about the 1999 Ukrainian presidential campaign – published in The Day on 21 August and 14 September 1999 – in which the author made a number of critical statements about two politicians, Natalia Vitrenko (leader of the Progressive Socialist Party of Ukraine) and Petro Symonenko (leader of Ukraine’s Communist Party), both of whom were presidential candidates. The applicant company maintained that the articles commented on the personal and managerial abilities of the two presidential candidates, their abilities to form a team, to deliver their promises and provide national leadership.

In August 1999 Ms Vitrenko lodged a complaint against The Day concerning the first article, and, in December 1999, Mr Symonenko lodged a complaint against the paper concerning the second. They complained that information contained in the articles was untrue and damaged their dignity and reputation.

On 3 March 2000 Minsky District Court of Kiev found the first article to be untruthful, as the Ukrainian Media Group had failed to prove the truth of the statements published. The court ordered The Day to pay Ms Vitrenko 2,000 Ukrainian hrivnas (UAH) (equivalent to EUR 369.68 at the time) and to publish a correction in the paper, alongside the operative part of the judgment. On 8 June 2000 the court partly allowed Mr Symonenko’s complaints and ordered The Day to pay him UAH 1,000 (EUR 184.84) in compensation for non-pecuniary damage, and to publish a correction with the operative part of the judgment.

2. Procedure and composition of the Court

The application was lodged on 12 December 2000 and declared partly admissible on 18 May 2004.

On 2 July 2004 the parties submitted a friendly settlement proposal to the Court and, on 5 October 2004, the Court decided to reject the proposed settlement proposed, as it considered that respect for human rights, as defined in the Convention, required the further examination of the case.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,
Andrбs Baka (Hungarian),
Loukis Loucaides (Cypriot),
Corneliu Bоrsan (Romanian),
Karel Jungwiert (Czech),
Volodymyr Butkevych (Ukrainian),
Mindia Ugrekhelidze (Georgian), judges,

and also Sally Dollй, Section Registrar.

3. Summary of the judgment

Complaints

The applicant company complained that the Ukrainian courts had not been able to distinguish between value judgments and facts in their assessment of the two newspaper articles at issue and that the courts’ decisions were a form of political censorship, which interfered with the company’s right to impart information freely. It relied on Article 10 (freedom of expression).

Decision of the Court

Continued examination of the case

Concerning the settlement reached by the Ukrainian Government and the applicant company, the Court took note of the serious nature of the complaints made by the applicant company regarding the alleged interference with its freedom of expression and did not, therefore, find it appropriate to strike the application out of its list of cases. It considered that there were special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the further examination of the application on its merits (Articles 37 § 1 in fine and 38 § 1(b) of the Convention).

Article 10

The Court found that the interference with the applicant company’s right to freedom of expression was prescribed by law and that it was intended to pursue a legitimate aim - the protection of the reputation and rights of others, namely Mr Symonenko and Ms Vitrenko. It then considered whether Ukrainian law and practice was in itself compatible with Convention law and practice under Article 10 § 1 and whether, as a consequence, the domestic courts failed to ensure the applicant company’s freedom of expression.



The Court observed that Ukrainian law on defamation made no distinction, at the time, between value judgments and statements of fact, in that it referred uniformly to “statements” (відомості) and proceeded from an assumption that any statement was amenable to proof in civil proceedings.



The Court also took note of recent recommendations, reports and resolutions from international bodies and non-governmental organisations which had all expressed grave concerns about the state of freedom of expression in Ukraine.



Under Article 7 of the Ukrainian Civil Code, the “person who disseminated the [contested] information has to prove its truthfulness”. The same burden of proof was required for published value judgments. Section 37 of the Printed Mass Media (Press) Act required the media to rectify disseminated statements if they had not been proved to be true. If the right to a good reputation of a person was violated, even though a defamatory statement was a value judgment, the courts could award compensation for non-pecuniary damage. Domestic law therefore presumed that the protection of the honour, dignity and reputation of a public person was more important than the possibility of openly criticising him or her. The Court concluded that Ukrainian law and practice clearly prevented the courts in the applicant company’s case from making distinctions between value judgments, fair comment or statements that were not susceptible of proof. Domestic law and practice therefore contained inflexible elements which in their application could lead to decisions incompatible with Article 10.

In the applicant company’s case, the Court considered that the statements made in both newspaper articles were value judgments, used in the context of political rhetoric, which were not susceptible of proof.

The Court observed that the publications contained criticism of the two politicians in strong, polemical, sarcastic language. No doubt the plaintiffs were offended and might even have been shocked. However, in choosing their profession, they laid themselves open to robust criticism and scrutiny; such was the burden which had to be accepted by politicians in a democratic society.

Considering the relevant texts as a whole and balancing the conflicting interests, the Court found that finding the applicant guilty of defamation was clearly disproportionate to the aim pursued. The interference with the applicants’ right to freedom of expression did not correspond to a pressing social need outweighing the public interest in the legitimate political discussion of the electoral campaign and the political figures involved in it. Moreover, the standards applied by the Ukrainian courts in the case were not compatible with the principles embodied in Article 10, and the reasons put forward to justify the interference could not be regarded as “sufficient”. The Court therefore held, unanimously, that there had been a violation of Article 10.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).