CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 15 juillet 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DC53971 { font-family:Arial; font-weight:bold; font-style:italic; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s5CD26361 { font-family:Arial; color:#008000 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s4BAE41EE { font-family:Arial; font-size:11pt } .s92A5AB2 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#0069d6 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sC90828B6 { font-family:Arial; font-size:11pt; text-decoration:underline } .sA101A847 { font-family:Arial; font-size:11pt; font-weight:bold } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7F { margin-top:0pt; margin-bottom:0pt; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 570 15.07.2010   Press release issued by the Registrar   Chamber judgment Not final [1]   Gazeta Ukraina-Tsentr v. Ukraine (application no. 16695/04)   Condemnation of newspaper for reporting defamatory statement unjustified   Unanimously   Violation of Article 6 § 1 (right to a fair trial) Violation of Article 10 (freedom of expression) of the European Convention on Human Rights     Principal facts   The applicant is a Ukrainian company, the Ukraina-Tsentr Newspaper, based in Kirovograd (Ukraine).   On 12 June, during one of the press conferences relating to the mayoral elections in Kirovograd, and held at the Ukrainian Independent News Agency (“the UNIAN”), a local journalist, Mr M., accused one of the candidates, Mr Y., of ordering him to be murdered for 5,000   US   dollars (USD). According to the applicant company, similar information was disseminated by the STB TV channel on the same day.   On 14 June 2002 an article appeared in the Ukraina-Tsentr Newspaper , in which the press conferences of 12 June 2002 were described. Mr Y. particularly complaining about the following statement in the article: the article “[Mr] M. accused [Mr] Y. of ordering him to be murdered” and about the reference to 5,000   USD, lodged a civil claim for defamation before the Kirovograd Leninsky District Court (the Leninsky Court) against the applicant company and Mr   M.   Submitting that Mr Y. was the Chairman of the Kirovograd Regional Council of Judges and could influence any judge in the region, Mr   M. asked the Supreme Court to transfer the case to one of the local courts in Kyiv, the city in which the press conference had taken place. Moreover, by the time his request was partly allowed, the Leninsky Court had already examined the case, having rejected Mr M.’s request to adjourn it. The Leninsky Court found the information in question defamatory, untrue and not proven to have come from official sources. The court concluded that the applicant company could not be protected against liability and ordered it and Mr M. to pay Ukrainian hryvnias 100,000 (UAH) and UAH   20,000, respectively, in compensation.   The applicant company appealed against that decision, complaining in particular that the judge who had decided its case could not be impartial, being dependent upon Mr   Y. It further noted that the information was in the public domain and had been accessible on the UNIAN website, a fact disregarded by the court. It also submitted that its proposal to publish a correction before and during the judicial proceedings had been refused by Mr Y.   The Leninsky Court’s decision was upheld on appeal and, in October 2003, by the Supreme Court. The applicant company paid the compensation awarded against it and UAH   2,500 in enforcement fees.     Complaints, procedure and composition of the Court   Relying on Article   6   §   1, the applicant company complained about the lack of independence and impartiality of the domestic courts. Relying further on Article   10, the company complained that the sanction against it for defamation had been unlawful and that the compensation it had been ordered to pay had been disproportionate.   The application was lodged with the European Court of Human Rights on 1   January   2004.   Judgment was given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Renate Jaeger (Germany), Karel Jungwiert (the Czech Republic), Mark Villiger (Liechtenstein), Mirjana Lazarova Trajkovska (the Former Yugoslav Republic of Macedonia), Zdravka Kalaydjieva (Bulgaria), Ganna Yudkivska (Ukraine), judges , and also Claudia Westerdiek , Section Registrar .     Decision of the Court   Article 6 § 1   The Court examined whether there had been a lack of “objective impartiality” by the Ukrainian judges case, that is whether there had been ascertainable facts which might raise objective doubts as to the judges’ impartiality [2] . In that respect even appearances might be important as they influenced, in a democratic society, the confidence of the public in the judiciary.   The Court found of no relevance the general comments by the parties on the institutional and financial independence of the judiciary in Ukraine because the present issue was the independence of judges within the judicial system itself, rather than from external parties.   Mr Y. held the position of chairman of the regional council of judges and the material submitted by the applicant company demonstrated the possible risk for judges to be influenced through threat of disciplinary proceedings or other career-related decisions. Furthermore the decision by the Supreme Court to transfer the case to another court suggested there was indeed a risk of bias of the Kirovograd courts. Therefore, the applicant company’s fears that judges lacked impartiality could be held to be objectively justified. Moreover, the higher courts, in dealing with the applicant company’s appeals, disregarded its submissions on that point . The Court concluded there had been a violation of Article   6   §   1.   Article 10   It was not disputed that the decisions of the Ukrainian courts and the award of damages made against the applicant company amounted to an interference with its right to freedom of expression. This interference had a legal basis – the Civil Code – and was accessible and foreseeable in its application. It also served the legitimate aim of “the protection of the reputation or rights of others”.   The Ukrainian courts found the applicant company and Mr   M. jointly guilty of accusing Mr   Y. of a serious crime. They also refused to exempt the applicant company from liability for disseminating untrue and defamatory information because the applicant company had not proven that the published information had come from official sources. The Court noted that the allegations made by Mr M. were very serious, especially in the context of the widely debated issue of the mayoral elections in Kirovograd and considering the vulnerability of journalists who covered politically sensitive topics (18 journalists had died in Ukraine since 1991).   The Ukrainian courts established that the intervention of Mr M. had not been distorted in the article and that the information had been presented without commentary or undue emphasis, in the context of a wider report about press conferences relating to the elections. However, in finding the applicant company and Mr   M. equally liable for the statement that had in fact emanated from Mr M., they had not weighed up the need to protect the reputation of Mr Y. against the applicant company’s right to divulge information of public interest about the elections. Neither had they provided sufficient reasons for putting Mr   M., who had made a defamatory statement, and the applicant company, who had reported about it, on an equal footing. Furthermore, they had not taken into account the fact that the information in question had been accessible prior to the publication of the article, the question of the proportionality of the interference or the possibility offered to Mr Y. by the applicant company to reply to the publication. The Court concluded there had been a violation of Article 10.     Just satisfaction   Under Article 41 the Court held that Ukraine was to pay EUR 8,400 in respect of pecuniary damage, EUR   5,000 in respect of non-pecuniary damage and EUR   830 in respect of costs and expenses,   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. Decisions, judgments and further information about the Court can be found on its Internet site . To receive the Court’s press releases, you can subscribe to the Court’s RSS feeds .   Press contacts [email protected] / +33 3 90 21 42 08 Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (téléphone : +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone : + 33 3 90 21 53 39) Nina Salomon (telephone : + 33 3 90 21 49 79)   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 Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.   [2] «   Subjective impartiality   » on the other hand concerned the personal conviction and behaviour of a particular judge and whether that judge held any personal prejudice or bias in a given case.