The cases of the European Court of Human Rights (hereinafter - European Court) on violations by Ukraine of Article 10 ("Freedom of expression") of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - Convention, European Convention) constitute only 1% of the decisions taken on Ukraine (9 decisions on infringement of Article 10 of Convention out of 822 decisions against Ukraine). [1] Decisions on violation by Ukraine of Article 10 of the European Convention constitute 1.8% of all decisions under this article taken against all countries (9 cases against Ukraine among 479 decisions on infringement of Article 10, taken by the European Court) [2] . In general, the decisions on all countries about violation of Article 10 constitute 3.2% of all decisions of the European Court (479 decisions on violation of Article 10 out of 14 854 decisions taken by the European Court). [3]

The following cases are summarized in this material: “ The Ukrainian Media Group v . Ukraine ” [4] (2005), “ Salov v . Ukraine ” [5] (2005), “ Lyashko v . Ukraine ” [6] (2006), “ Marchenko v . Ukraine ” [7] (2009), “ Myrskyy v . Ukraine ” [8] (2010), “ Gazeta Ukraina - Tsentr v . Ukraine ” [9] (2010), “Editorial Board of Pravoye Delo and Shtekel v. Ukraine” [10] (2011).

Case "Ukrainian Media Group v. Ukraine"

In this case famous politicians challenged dissemination of false information about them in the newspaper "The Day" (the owner - "Ukrainian Media Group") and the national courts decided to refund them moral damages in connection with what "Ukrainian Media Group "(the applicant) applied to the European Court for protection of their right under Article 10 of the European Convention.

The European Court concluded that “the Ukrainian law and practice clearly prevented the courts in the applicant's case from making distinctions between value-judgments, fair comment or statements that were not susceptible of proof. Thus, the domestic law and practice contained inflexible elements which in their application could engender decisions incompatible with Article 10 of the Convention. In articles about politicians value judgments were “used in the course of political rhetoric which are 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 thereby, and may had even been shocked. However, in choosing their profession, they laid themselves open to robust criticism and scrutiny; such is the burden which must be accepted by politicians in a democratic society”. Thus European court indicated that “Ukrainian courts overstepped the margin of appreciation afforded to the domestic authorities under the Convention. The finding of the applicant's guilt in defamation was clearly disproportionate to the aim pursued”. Thus the European Court decided that there had been a violation of Article 10 of the European Convention.

Case "Salov v . Ukraine"

The applicant was apprehended for having disseminated false information about the alleged death of a presidential candidate. The applicant had allegedly disseminated this information in the form of a statement by the Speaker of the Verkhovna Rada (Parliament) published in a special forged issue of the Verkhovna Rada newspaper Holos Ukrayiny .

The European Court concluded that the interference with freedom of expression was prescribed by law and pursued a legitimate aim, although article contained false allegations, but the court decided that the interference was not proportionate to the legitimate aim in connection with the following.

False statements that were distributed by the applicant were not prepared by him, and the national courts had not proven that he intentionally tried to mislead other voters and prevent them in exercising of their voting rights in presidential elections. “Furthermore, the Article 10 of the European Convention does not prohibit discussion or dissemination of the information received, even if there are serious doubts about its reliability”. “Moreover, the impact of the information contained in the newspaper was minor as he only had eight copies of the forged Holos Ukrayiny newspaper and spoke to a limited number of persons about it”. It was a fact that should had been taken into account by the domestic courts. In the applicant's case, the sentence of five years, which was suspended for two years, the fine of UAH 170 and the resulting annulment by the Bar Association of the applicant's licence to practise law was a very severe penalty. The reasons relied on by the respondent State were neither relevant nor sufficient to show that the interference complained of was “necessary in a democratic society”. “Furthermore, the decision to convict the applicant for discussing information disseminated in the forged copy of a newspaper about the death of President Kuchma was manifestly disproportionate to the legitimate aim pursued”.

Case "Lyashko v. Ukraine"

In this case, the applicant (editor-in-chief of "Polityka") has submitted an application to the European Court in connection with violation of his right to freedom of expression under Article 10 of the European Convention for the publication and distribution of articles about the illegal activities of political figures, representatives of the police authorities, etc.

As a result of five years prosecution, daily newspaper Polityka has ceased publication. The applicant was convicted of abuse of power, intentional defamation in print and an unfounded accusation of committing a grave offence and sentenced to two years’ imprisonment on probation and a two years prohibition on occupying posts involving media management.

The Court found that the applicant’s conviction and sentence to two years’ imprisonment and a prohibition on occupying posts in media management, imposed following a trial lasting several years could had had a considerable “chilling effect” on the applicant’s freedom of expression, which “cannot be said to be substantially mitigated by the decision of the appeal court given the fact that his conviction was upheld in substance and that he was not punished at least partially because of procedural reasons and partly due to the decriminalisation of the imputed offences in the new Criminal Code”.

The Court was not convinced by the Government’s argument that the information was not a matter of public interest. The first two articles were dedicated to the issues of management of the Black Sea Shipping Company, a State company, which at the material time was a subject of a number of commercial disputes, widely reported in the press and, by implication, to the redistribution of authority after the fall of a former Prime Minister Lazarenko. The third and fourth articles concerned corruption in the police, a matter of general concern in Ukrainian media. They described alleged links between a person under investigation and the Chief of Police, provoking, or else being provoked by the wide media coverage of this story in the local media. “Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays her- or himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance”.

Case "Marchenko v. Ukraine"

The applicant (teacher in Boarding School for Children with Language Disorders, a head of the school branch of the “VOST” - one of the two trade unions represented in the School) appealed to the European Court for violating, among others, of his right to freedom of expression. The applicant in his capacity as a trade union leader made several applications to the Control Inspection Department (KRU), alleging that Mrs P. (director of the school) had abused her office and misused School property and funds, the complaints were sent to KRU and prosecutors’ office (controlling authorities). Several representatives of the Regional VOST participated in the picket protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticizing Mrs. P.

“Notwithstanding the particular role played by the applicant in his capacity as union representative, as well as that his statements, which related to official conduct of a public employee, were as such a matter of public concern, the Court finds that he had a duty to react within limits fixed, inter alia , in the interest of “protecting the reputation or rights of others”, including the presumption of innocence” (see Constantinescu v. Romania , no. 28871/95, § 72, ECHR 2000-VIII). “Moreover, the applicant was obliged to have regard to the duty of loyalty, reserve and discretion owed by him to his employer” (see, for example, Guja v. Moldova [GC], no. 14277/04, § 70, ECHR 2008). “The Court further states that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace must be protected, in particular where the employee concerned is a part of a small group of persons aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large”. In light of these principles, the Court found that, as regards the fact that the applicant had signed several letters to controlling authorities demanding investigations into Mrs P.’s official conduct, he could not be reproached for doing so in bad faith, in particular, as “he had acted on behalf of his trade union and presented various materials in support of his allegations”. The Court found, therefore, that, in so far as the interference with the applicant’s freedom of expression was based on the above letters addressed to the competent authorities, its “necessity” in the present case had not been established.

The Court considered that, “while the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly hinders public debate concerning matters of public concern, such as misappropriation of public funds”. It further considered that “the circumstances of the instant case – a classic case of defamation of an individual in the context of a debate on a matter of public interest – presented no justification for the imposition of a prison sentence. Such a sanction, by its very nature, will inevitably have a chilling effect on public discussion, and the notion that the applicant’s sentence was in fact suspended does not alter that conclusion particularly as the conviction itself was not expunged”. Overall, the Court found that, in convicting the applicant in respect of the letters he sent to KRU and the prosecutor’s office, and in imposing a lengthy suspended prison sentence at the end of the proceedings, the domestic courts in the instant case went beyond what would had amounted to a “necessary” interference with the applicant’s freedom of expression and there had been therefore been a violation of Article 10 of the Convention.

Case “Myrskyy v . Ukraine”

The applicant appealed to the European Court in connection with violation of his right to freedom of expression during the discussion at a roundtable and statements concerning the deployment of the Party of Ukrainian Unity that seeks to form extremist national ideology and psychology. During litigation process on national level the applicant objected to the claim, contending that the impugned sentence was the journalist's own interpretation of his words taken out of context.

The reliability of the applicant's statements were impossible to verify, since the audio-tape of the round table was destroyed after the expiry of one year period of storage, and pre-trial investigation of the case lasted for almost two years (while procedural law sets the term of up to 20 days). "The unfortunate result was that by not dealing with the case, or even informing the defendant of its existence, until the evidence which could well have shed a conclusive light on the issue had been destroyed, the first-instance court had put itself in a position in which its assessment of the relevant facts was restricted".

“As to the conclusion which the courts drew from the factual findings that the applicant had indeed made the statement as printed and that it was erroneous, namely the conclusion that the statement was defamatory, the domestic courts gave no reasoning, but merely concluded from the finding that the facts were untrue, that they were also defamatory”. "In spite of the applicant's arguments, the courts failed to recognise that the case before them involved a conflict between the right to freedom of expression and the protection of the reputation and the rights of others, let alone undertaking a balancing exercise between the interests involved."  “It follows that the domestic courts failed to give relevant and sufficient reasons for their finding that the statements ascribed to the applicant were defamatory of the plaintiffs”.

Case "Gazeta Ukraina - Tsentr v . Ukraine"

In this case the company "Ukraina-Tsentr" (applicant) distributed during the mayoral elections information received by mail from local journalist (Mr. M.) that one of the candidates for mayor (Mr. Y.) ordered murder of this local journalist. This information was also distributed on the other sources. As the national courts had recognized such dissemination of information as illegal the applicant applied to the European Court in connection with the violation of right under Article 10 of the European Convention.

The European Court noted that “news reporting based on interviews or reproducing the statements of others, whether edited or not, constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog” (see, for instance, The Observer and The Guardian v. the United Kingdom , 26 November 1991, § 59, Series A no. 216). “The domestic courts, however, failed to distinguish between the accusation made by Mr M. and the reporting on such accusation by the applicant company and found them jointly and equally liable for the statement that did not emanate from the applicant company but was clearly identified as that proffered by another person. The domestic courts thus failed to explain whether the defamation ascribed to the applicant company lay in the contents of the reported accusation, or in the fact that the applicant company had made it”. The Court noted that “the domestic law exempts the media from liability under certain conditions where they have published untrue information. It is not, however, clear why this issue had been so extensively discussed by the domestic courts in the present case because they had themselves established that the information as disseminated by the applicant company was true”. The Court found “no evidence that the domestic courts in their judgments performed the balancing exercise between the need to protect the reputation of Mr Y. and the applicant company's right to divulge information of public interest in the context of election debates. They did not provide sufficient reasons for putting Mr M. who had made a defamatory statement and the applicant company, who had reported about it, on equal footing and for disregarding the fact that the impugned information had been widely disseminated prior to the publication by the applicant company. Neither did they discuss the proportionality of the interference and the fact that the applicant company had offered to the plaintiff the possibility to reply to the impugned publication”.  In such circumstances, the Court considered that the Ukrainian courts had “interfered with the applicant company's right to freedom of expression in a manner which was not necessary in a democratic society”, accordingly, the there was a breach of Article 10 of the Convention.

Case "Editorial Board of Pravoye Delo and Shtekel v. Ukraine"

The application to the European Court was filed by editorial board of the newspaper "Pravoye Delo" and its editor-in-chief (applicants 1, 2) in connection with violation of their right to freedom of expression. Pravoe Delo published an anonymous letter allegedly written by an employee of the Security Service of Ukraine, which had been downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned.

The national courts further held that “the content was defamatory and that the applicants had failed to prove that it was truthful. It found no grounds to release the applicants from civil liability under section 42 of the Press Act, as the internet site to which the applicants referred was not printed media registered pursuant to section 32 of the Press Act”.

The European Court noted that "a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail” (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-XI).

The European Court found that the national court’s “order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that respect”.

Ukrainian law, specifically the Press Act, grants journalists immunity from civil liability for verbatim reproduction of material published in the press. The Court noted that “this provision generally conforms to its approach to journalists’ freedom to disseminate statements made by others”. "However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection”, the Court observed that “there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in Ukraine did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet". The European Court “considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog””. “In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees for journalists’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention”.

The Court further observed that “under Ukrainian law journalists may not be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and made checks on such information, or if the injured party failed to use the available possibilities to settle the dispute before going to court”. “In the domestic proceedings, the applicants explicitly raised the defense of qualified privilege under the latter provision. In particular, they argued that they had no malicious intent to defame the claimant by the publication of the material in question and that the public had an interest in receiving the information. Furthermore, they argued, that by reproducing the material previously published on the Internet, their intention was to promote debate and discussion on political matters of important public interest. They also argued that the claimant had not taken any steps to settle the dispute with the applicants despite the fact that in the same publication they had invited any person concerned to comment on it. However, their plea was entirely ignored by the courts”. Therefore, the Court found that, “given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail”. This enabled the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention had not been met.

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European Court considers the cases even when the government and the applicant agree on friendly settlement of a dispute. Such was a situation in the case "Ukrainian Media Group v. Ukraine", when the Government and the applicant reached a settlement, which was rejected by the European Court.  In this connection, the Court took note of the serious nature of the complaints made in the case regarding the alleged interference with the applicant's freedom of expression. Because of this, the Court did not find it appropriate to strike the application out of the list of its 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.

By the law Courts in Ukraine use the Convention and the European Court decisions as a source of law. Thus, all the above provisions shall be applied by the national courts in Ukraine.
Measures of implementation of the European Court decisions are: payment of compensation, additional individual measures, general measures. Thus the value of each of the decision, taken by the European Court, is that they affect development of national legislation towards eliminating systemic problems (causes and conditions) that make the violation of the European Convention possible. European Court reserves freedom for state in choosing the measures necessary for the implementation of its decisions. It should be noted that execution of much of the decisions of the European Court for a long time remain under control of the Committee of Ministers, which monitors implementation of decisions of the European Court. The case cannot be closed as long as the government did not take measures to implement the decision of the European court.

Prepared by Mariana Bulgakova.