CEDH · CASELAW;CLIN;ENG — 29 mars 2005

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Ukraine - 72713/01 Judgment 29.3.2005 [Section II] Article 10 Article 10-1 Freedom of expression Newspaper owner convicted of defamation for having published articles expressing value judgments about politicians: violation   Article 37 Article 37-1 Striking out applications Settlement rejected by the Court in accordance with Article   37(1) in fine   Facts : The applicant owns a daily newspaper, The Day ( газета “День” ). In two articles about the 1999 Ukrainian presidential campaign 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. Ms Vitrenko lodged a complaint against The Day concerning the first article, and Mr Symonenko filed a complaint concerning the second. They considered that information contained in the articles was untrue and damaging to their dignity and reputation. The District Court found the first article   to be untruthful, as the applicant had failed to prove the truth of the statements published, and partly allowed Mr   Symonenko’s complaint. The applicant was ordered to pay the complainants compensation for non-pecuniary damage and to publish corrections alongside the operative part of the judgments. The applicant 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 interfering with the applicant’s right to impart information freely. Law :Articles 37 § 1 in fine and 38 § 1(b) – A settlement reached by the Ukrainian Government and the applicant company was rejected by the Court, given the serious nature of the complaints and the 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. Article   10 – The interference with the applicant company’s right to freedom of expression was prescribed by law and was intended to pursue the legitimate aim of protecting the reputation and rights of Mr   Symonenko and Ms   Vitrenko. At the time, however, Ukrainian law on defamation made no distinction 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. In the Court’s view the impugned statements had been value judgments, used in the context of political rhetoric, which were not susceptible of proof. The publications had contained criticism of the two politicians in strong, polemical and sarcastic language. No doubt the plaintiffs had been offended and might even have been shocked. However, in choosing their profession, they had laid themselves open to robust criticism and scrutiny. Considering the relevant texts as a whole and balancing the conflicting interests, 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”. Conclusion :violation (unanimously). Article   41 – The Court awarded the applicant EUR 588 for pecuniary damage and EUR 33,000 for 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. Click here for the Case-Law Information Notes