CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 février 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sB15BD35E { color:#b5082e } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   128 19.2.2009   Press release issued by the Registrar   CHAMBER JUDGMENT MARCHENKO v. UKRAINE   The European Court of Human Rights has today notified in writing its Chamber judgment [1] 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.   Under Article 41 (just satisfaction) of the Convention, the Court awarded the Mr   Marchenko 1,000   euros (EUR) in respect of pecuniary and non-pecuniary damage and EUR   50 for costs and expenses. (The judgment is av a ilable only in English.)   1.     Principal facts   The applicant, Mykhaylo Marchenko, a Ukrainian national, is a teacher and head of a trade union in the school where he works. He was born in 1946 and lives in Pasiky-Zubrytski (Ukraine).   Following allegations against the director of Mr Marchenko’s 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 school’s 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 Marchenko’s 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.     2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 19 December 2003.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Rait Maruste (Estonia), Karel Jungwiert (the Czech Republic), Renate Jaeger (Germany), Mark Villiger (Liechtenstein), Isabelle Berro-Lefèvre (Monaco), judges , Stanislav Shevchuk, ad hoc judge , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [2]   Complaints   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   Article 10   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 director’s 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 Marchenko’s 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 director’s right to be presumed innocent until proven otherwise.   Having had regard, however, to the fact 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.   Article 6   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 Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.