CEDH · CASELAW;CLIN;ENG — 6 septembre 2005

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Ukraine - 65518/01 Judgment 6.9.2005 [Section II] Article 10 Article 10-1 Freedom of expression Conviction for disseminating false information about a candidate for the presidency of Ukraine during the presidential elections: violation   Article 5 Article 5-3 Judge or other officer exercising judicial power Holding in detention for seven days without judicial review: violation   Article 6 Civil proceedings Article 6-1 Impartial tribunal Quashing in supervisory review proceedings of a procedural decision that had become final: violation   Fair hearing Independence and impartiality of District Court judge hearing a case – lack of sufficient guarantees against pressure from the Presidiums of the regional courts: violation   Facts : The applicant is a lawyer who at the time of the events in question was the legal representative of a candidate for the presidency of Ukraine in the 1999 elections. In October 1999, the applicant allegedly distributed a number of copies of a forged special edition of the Verkhovna Rada (Parliament) newspaper, which included a statement attributed to the Speaker of the Verkhovna Rada, claiming that presidential candidate and incumbent President Leonid Kuchma was dead.On 1   November 1999 the applicant was arrested and placed in detention for having disseminated false information about Mr Kuchma. On 10   November 1999 he lodged a petition seeking his release from detention with the District Court, which was dismissed on 17 November 1999. On 7 March 2000 the District Court ordered an additional investigation to be undertaken into the circumstances of the case, having found no evidence to convict the applicant of the offences with which he was charged. However, in April 2000, the Presidium of the Regional Court allowed a protest lodged by the prosecution against the ruling of 7 March 2000 and remitted the case for further judicial consideration. The applicant was released from detention in June 2000. In July 2000, the District Court, chaired by the judge who had initially ordered an additional investigation into the facts, convicted the applicant to a five-year suspended prison sentence for interfering with the citizens’ right to vote for the purpose of influencing election results by means of fraudulent behaviour. As a result, he also lost his licence to practise law for three years and five months. Law : Article 5(3) – The applicant had been apprehended by the police on 1 November   1999 but his detention was not reviewed by a court until 17   November   1999, 16 days after his arrest. Even if the Court were to accept the Ukrainian Government’s argument that the applicant had contributed to the delay by not applying for release until 10 November, his detention for even seven days without any judicial control fell outside the strict constraints of time laid down by Article 5(3). Conclusion : violation (unanimously). Article 6(1) – Applicability : The remittal of the case for additional investigation by the District Court had marked a procedural step which had been the precondition to a new determination of the criminal charge. Article 6(1) guarantees were therefore applicable to the case. Compliance – (i) Independence and impartiality of the courts: The applicant’s doubts as to the impartiality of the District Court judge might be said to have been objectively justified, taking into account the insufficient legislative and financial guarantees against outside pressure on the judge hearing the case and, in particular, the lack of such guarantees in respect of possible pressure from the President of the Regional Court, the binding nature of the instructions given by the Presidium of the Regional Court and the wording of the relevant intermediary judicial decisions in the case. (ii) Equality of arms: The principle of equality of arms dictated that the public prosecutor’s protest lodged with the Presidium of the Regional Court should have been communicated to the applicant and/or his advocate, who should have had a reasonable opportunity to comment on it before it was considered by the Presidium. (iii) Lack of reasons for a judicial decision: The domestic courts gave no reasoned answer as to why the district court had originally found no evidence to convict the applicant of the offences with which he was charged and yet, subsequently found him guilty of interfering with voters’ rights. (iv) Rule of law and legal certainty: The resolution by the Presidium of the Regional Court to consider the prosecution’s late request for supervisory review against the resolution of 7 March 2000, and to set it aside a month after it had been adopted could be described as arbitrary, and as capable of undermining the fairness of the proceedings. Hence, the criminal proceedings in their entirety were unfair. Conclusion : violation (unanimously). Article 10 – It was common ground between the parties that the applicant’s conviction had constituted an interference with his right to freedom of expression. The interference was prescribed by law, and had pursued the legitimate aim of providing voters with true information in the presidential campaign. As to the necessity in a democratic society, whilst the article could be described as a false statement of fact, the applicant had not produced or published it himself and had referred to it in conversations with others as a personalised assessment of factual information, the veracity of which he doubted. The domestic courts had failed to prove that he was intentionally trying to deceive other voters and to impede their ability to vote. Moreover, the impact of the information contained in the newspaper was minor as he only had eight copies of the forged newspaper and spoke to a limited number of people about it. Concerning the proportionality of the interference, the imposition of a five years sentence (suspended for two), a fine and the annulment of the applicant’s licence to practice law had constituted a very severe penalty. The necessity of the interference had not been shown by the respondent State, and the decision to convict the applicant for discussing information disseminated in the forged copy of a newspaper was manifestly disproportionate to the legitimate aim pursued. Conclusion : violation (unanimously). Article 41 – The Court awarded the applicant EUR 227.55 in respect of pecuniary damage and EUR   10,000 in respect of non-pecuniary damage. It also made an award for costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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