CASE OF GAZETA UKRAINA-TSENTR v. UKRAINE
Violation of Art. 6-1;Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
4. The applicant company is the editorial body of a limited liability company called the Ukraina-Tsentr Newspaper and is registered in the city of Kirovograd, Ukraine. 5. In June 2002 the mayoral elections were conducted in the city of Kirovograd. On 12 June 2002, during the election campaign, two press conferences relating to those elections were held at the Ukrainian Independent News Agency (“the UNIAN”). During one of those press conferences, a local Kirovograd journalist, Mr M. accused one of the candidates, Mr Y., of ordering him to be murdered for 5,000 US dollars (USD). The wording of the accusation made by Mr M., as later established by the domestic courts, contained the following paragraph: “He (Mr Y.) went to his friend, the one locally known politician, whom I will not name yet, but if necessary we will provide [his name], we have facts. Upon his request, the other took out five thousand dollars of his money and handed it to his head of security service and said the following, that it is necessary to reserve for me a place in the morgue. So, at present, they “ordered” me for five thousand dollars. Who ordered? I say: [Mr] Y. [full name], I declare it officially.” 6. This information among other news was disseminated by the UNIAN via e-mail and posted on its website. According to the applicant company, it received this information by electronic mail in the following form: “Furthermore, [Mr] M. accused the Kirovograd mayoral candidate and President of the Kirovskiy District Court, [Mr] V. Y., “of ordering him to be murdered”. The journalist reported that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them and claimed that they had proof of pressure being applied to them”. 7. According to the applicant company, on the same day, the STB TV channel in its Vikna-Novyny news programme disseminated similar information, indicating that Mr M. had also mentioned the sum of USD 5,000 for “ordering him to be murdered”. 8. On 14 June 2002 the applicant company published an article which was titled “The metropolitan tour” in which the above-mentioned press conferences of 12 June 2002 were described. Among other things, the article contained the following paragraph: “[Mr] M. accused [Mr] Y. of 'ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars. The journalist stated that for safety reasons he had taken his family away from the region. According to him, all four journalists participating in the press conference addressed the General Prosecutor's Office, the Security Service of Ukraine and the Ministry of the Interior concerning the threats to them. He also claimed that they had proof of the pressure being applied to them.” 9. In August 2002 Mr Y. lodged a civil claim in the Kirovograd Leninsky District Court (the Leninsky Court) against the applicant company and Mr M. complaining that the phrase “[Mr] M. accused [Mr] Y. 'of ordering him to be murdered' and even stated the amount paid for the 'order' – 5,000 US dollars” published by the applicant company was untrue and abased his human dignity. He maintained that that publication had affected his professional and private life and damaged his reputation as an individual, lawyer and politician. Taking the view that the publishing of a correction would not be sufficient, he asked the courts to pay him non-pecuniary damages. Later, Mr Y. supplemented his claim by asking for the statement made by Mr M. during the press conference (see paragraph 5 above) to be found untrue and defamatory. 10. According to the applicant company, its co-defendant, Mr M., asked the court to adjourn the proceedings and on 30 November 2002 asked the Supreme Court to transfer the case to another court. The applicant company supported those requests. In his request to the Supreme Court, Mr M. noted in particular that the plaintiff was the President of the Kirovograd Kirovskiy Local Court and therefore, to ensure the objective and unbiased examination of the case, he asked for the case to be transferred to one of the local courts in Kyiv, the city in which the press conference had taken place. By letter dated 12 December 2002, the Deputy President of the Supreme Court allowed the request in part and ordered the case to be transferred to the Kamyansky Local Court in the Cherkassy region. However, by that time, the Leninsky Court had already examined the case (see the next paragraph), having rejected Mr M.'s request for the case to be adjourned. 11. On 10 December 2002 the Leninsky Court, in a single judge formation (Judge B.) found that the accusations made by Mr M. and the applicant company that Mr Y. had ordered Mr M. to be murdered were contrary to the principle of the presumption of innocence guaranteed by the Constitution. The defendants did not prove before the court that the disseminated information was true. The court found the following phrase from the applicant company's article “[Mr] M. accused [Mr] V. Y. 'of ordering him to be murdered' and noted the amount paid for the 'order' – 5,000 US dollars” untrue and defamatory. The court also found that Mr M. had accused Mr Y. of 'ordering' him to be murdered for USD 5,000 during the press conference and that such accusation was also untrue and defamatory. The court noted that, in view of the fact that the two bodies had not drawn up a formal contract between them, the applicant company could not prove that it had received the impugned information officially from the UNIAN. Furthermore, the information published by the applicant company did not correspond to the information disseminated by the UNIAN. For those reasons, the court concluded that the applicant company could not be protected against liability. The applicant company and Mr M. were ordered to pay Ukrainian hryvnias 100,000 (UAH) and UAH 20,000, respectively, in compensation. The court, however, found no liability against the UNIAN, which had been identified as a co-defendant by the court, because the plaintiff had lodged no claims against it and the UNIAN had published a correction. 12. The applicant company appealed against the decision of the first-instance court. It complained, in particular, that Judge B. could not be impartial because Mr Y. was the chairman of the regional council of judges and the deputy chairman of the regional branch of the Union of Lawyers and, as a judge and a lawyer, Judge B. was dependent upon the plaintiff. The applicant company further noted that the court had disregarded the fact that the impugned information had been circulated by electronic mail, had also been freely accessible on the UNIAN website and that such information belonged in the public domain. It also submitted that the plaintiff had not asked it to correct the material and its proposal to publish a correction before the judicial proceedings and during the judicial proceedings had been refused by the plaintiff. 13. On 12 March 2003 the Kirovograd Regional Court of Appeal upheld the decision of the first-instance court but decreased the compensation award. The applicant company was ordered to pay UAH 50,000 in compensation. 14. The applicant company appealed in cassation. 15. On 2 October 2003 the Supreme Court upheld the decisions of the lower courts. 16. On 30 October 2003 the applicant company paid the compensation awarded against it and UAH 2,500 in enforcement fees. 17. Relevant provisions of the Act read as follows: Section 97 Disciplinary proceedings against judges “1. Disciplinary proceedings shall be regarded as the procedure of consideration by the body, specified by the law, of a statement regarding the breaking of judicial status, official duties or the oath by a judge. 2. The right to initiate disciplinary proceedings against a judge shall belong to the following persons: ... the chairman of a relevant council of judges... 3. It is forbidden to abuse the right specified in paragraph 2 of this section. In particular, it is forbidden to initiate consideration of an issue concerning the legal liability of a judge without sound reasons or to use the said right to exert pressure upon a judge in connection with the administration of justice by such a judge...” “1. Within the period between the conferences of judges the functions of a judicial self-government shall be performed by a relevant council of judges. 2. A council of judges shall elect from among its members the chairman, deputy chairman and secretary of a council of judges. Chairmen and deputy chairmen of the courts of appeal and higher courts, head of the military chamber of the Court of Appeal of Ukraine and head of the military chamber of the Court of Cassation of Ukraine shall not be elected to the post of chairman of a relevant council of judges. 3. Within the period between the conferences of judges a council of judges shall provide for execution of the decisions taken by a conference and control over their observance, also decide on convocation of the next conference. The powers and operation of a council of judges shall be specified by this Act and the regulations of a council of judges approved by a conference of judges. 4. A council of judges shall: 1) exercise control over the operation of relevant courts and relevant departments of the State judicial administration, hear progress reports of chairmen of these courts and officials of the State judicial administration; 2) consider the issues of legal and social protection of judges, provision of consumer and household services for judges and their families, and take the decisions to this effect; 3) consider the issues concerning the appointment of judges to administrative posts in courts in the manner prescribed by this law; 4) hear the reports of members of relevant judicial boards of experts concerning their work on these boards; 5) submit the proposals on operation of relevant courts for consideration of the State bodies and local self-government authorities; 6) hear, at least once a year, the information of the State judicial administration of Ukraine on support of operation of the courts of general jurisdiction. 7) take other decisions falling within the limits of its power. 5. The decisions taken by a council of judges shall be binding for the judges holding the administrative posts in relevant courts. A decision of a council of judges may be cancelled only by a conference of judges and suspended by the decision of the Council of Judges of Ukraine.” 18. Relevant extracts from the Constitution read as follows: “... Everyone is guaranteed judicial protection of the right to have corrected misinformation communicated about himself or herself or members of his or her family, and of the right to demand that any type of material be corrected, and also the right to compensation for pecuniary or non-pecuniary damage inflicted by the collection, storage, use and dissemination of such misinformation.” “Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs. Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice. The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.” “A person is presumed innocent and shall not be subjected to criminal conviction unless proved guilty through a legal process which establishes a guilty verdict. No one is obliged to prove that he or she is innocent of committing a crime. An accusation shall not be based on illegally obtained evidence or assumptions. All doubts in regard to the proof of guilt are interpreted in the accussed's favour. In the event that a court verdict is revoked, the State shall, as determined, provide pecuniary or non-pecuniary damage.” 19. Relevant extracts from the Civil Code read as follows: “A citizen or an organisation shall be entitled to demand in a court of law that material be corrected if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful. ... information disseminated about a citizen or an organisation that does not conform to the truth and causes damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.” 20. Relevant extracts from the Printed Media (Press) Act provide: “... A journalist is obliged to: ... 2) provide objective and truthful information for publication; ...” “Citizens, legal entities and State bodies and their legal representatives have the right to demand correction of material published about them or data that does not correspond to the truth or defames their honour and dignity. If the editorial board does not have any evidence that the information published by it corresponds to the truth, it has to correct this material at the request of the plaintiff in the next issue of the printed media or to publish a correction on its own initiative. ...” “The editorial board and journalists are not liable for the publication of information that is untrue, defames the honour and dignity of citizens and organisations, infringes their rights and lawful interests or constitutes abuse of the freedom of activity of the media and the rights of journalists if: 1) this information was received from the news agencies or from the media owner (co-owners); 2) the information contains responses to a formal request for access to official documents or to a request for written or oral information, provided in accordance with the Data Act; 3) the information is a verbatim reproduction of any official address of the officials of State bodies, organisations and the citizens' unions; 4) the information is a verbatim reproduction of materials published by other printed media which refer to that information; 5) the information contains secrets that are specifically protected by law, but the journalist received this information lawfully.” 21. The relevant extract of the Act provides as follows: Section 30 Relationships between news agencies and distributors/owners (users) of a means of communication “The basis of a relationship between a news agency and distributor/owner (user) of a means of communication shall be in the form of a contract. A distributor/owner (user) of a means of communication enters into a contract with the news agency if the latter has a State registration certificate.” 22. The relevant extract from Resolution No. 7 reads as follows: “... 17. In accordance with Article 7 of the Civil Code, the defendant [in a defamation case] has to prove that the information disseminated by him corresponds to the truth. The plaintiff only has the obligation to prove that the defendant has disseminated defamatory information about him. The plaintiff also has a right to provide evidence of the untruthfulness of such information.” 23. The applicant company submitted extracts from reports published in Ukraine by the NGO, the International Foundation “Centre for Judicial Studies”. The reports titled “Monitoring of Judicial Independence in Ukraine (2007)” and “Monitoring of Judicial Independence in Ukraine. (2008)” provided, inter alia, that among the forms of pressure [being put] on judges were threats to 'complicate a career' and to 'initiate dismissal or disciplinary proceedings'. According to the same reports, councils of judges had been rated the third most influential body on judges because they could affect the professional career of a judge.