CASE OF MARCHENKO v. UKRAINE
Remainder inadmissible;Violation of Art. 10;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk
5. The applicant was born in 1946 and lives in Pasiky-Zubrytski. 6. Since 1974 the applicant has worked as a teacher in the Lviv Boarding School no. 6 for Children with Language Disorders (“the School”). In 1995 he was elected head of the school branch of the “VOST” - one of the two trade unions represented in the School. 7. On 12 January 1996 the local Board of Education employed Mrs P. to serve as a director, notwithstanding opposition from some staff, in particular the VOST members. 8. In May 1996 Mrs P. dismissed an employee, who was a VOST member, without the consent of the VOST. Subsequently, in 1998, this employee was reinstated as a result of a court action brought on her behalf by the VOST. 9. On 6 June 1996 Mrs P. refused to sign a collective agreement, signed by the VOST and the head of the second trade union present at the School. 10. On an unspecified date in late 1996, a former School driver who had been dismissed by Mrs P. for incompetence submitted a written statement to the applicant, alleging that in April 1996 Mrs P. had ordered him to unload ten boxes of humanitarian aid intended for the School at her father’s estate and that on many occasions she had used the school vehicle for personal purposes. 11. In early 1997 the applicant in his capacity as a trade union leader made several applications to the Control Inspection Department (Контрольно-ревізійне управління, a public audit service, scrutinising the use of funds by State-owned entities, “the KRU”), alleging that Mrs P. had abused her office and misused School property and funds. In particular he stated that Mrs P. had appropriated ten boxes of humanitarian aid, the School’s TV set, other video equipment and bricks from the school boundary wall which had been demolished. On several occasions the applicant also complained about the situation to Mr U., the regional leader of the VOST. 12. In response to these complaints in 1997 the KRU held several inquiries into the use of the School funds. 13. In its report of 28 February 1997, the KRU stated that there were no serious instances of mismanagement of the School’s property. 14. The KRU’s report of 26 March 1997, however, revealed certain shortcomings on the part of the School administration in the handling of humanitarian aid, charity and the bricks. However, no evidence was found that any of the humanitarian aid or charity monies or any bricks had been appropriated by Mrs P. 15. In April 1997 the applicant on behalf of the School branch of the VOST, Mr U. on behalf of the Regional VOST, and Mr N. on behalf of the local branch of the Ukrainian Conservative Party made a criminal complaint against Mrs P. to the Lychakivsky District Prosecutor’s Office (“the Prosecutor’s Office”) a criminal complaint against Mrs P., referring largely to the same circumstances as in the VOST’s complaints to the KRU. On 28 April 1997 the Prosecutor’s Office dismissed this complaint for want of evidence of criminal conduct on Mrs P.’s part. On 17 June 1997 a second criminal complaint was dismissed on the same ground. However, criminal proceedings were initiated into the circumstances of the disappearance of the TV set and the video equipment. 16. On 26 May 1997 several representatives of the Regional VOST picketed the Lychakivsky District Administration protesting against the alleged abuses by Mrs P. The participants in the picket carried placards with various slogans criticising Mrs. P. and her deputy Mrs N., as well as their supporters within the local administration. The slogans concerning Mrs P. read as follows: “Mrs P. and Mrs N. - return humanitarian aid and 20,000 bricks from the school wall to the disabled children”; “Boarding school no. 6 director Mrs P. and her clique of VOST persecutors [should be submitted] to court”; and “Mrs P. and Mrs N., sticky hands off the disabled children of Boarding school no. 6”. 17. In May 1998 Mrs P. brought a private prosecution against the applicant. She complained, in particular, that in his letters to the KRU and the Prosecutor’s Office the applicant had falsely accused her of abuse of office and misappropriation of public funds and that he had organised and participated in the picket of 26 May 1997, during which the demonstrators displayed offensive placards. Mrs P. further concluded that the applicant’s actions fell within the ambit of Article 125 § 2 (defamation in print) and § 3 (false accusation of serious crimes) and Article 126 (insult) of the Criminal Code of 1960 in force at the material time. 18. On 14 May 1998 a judge of the Lychakivsky District Court of Lviv found that the applicant’s conduct vis-à-vis Mrs P. fell within the ambit of Article 125 § 1 of the Criminal Code (simple defamation) and Article 126, and initiated criminal proceedings against the applicant. The judge further ordered that the applicant be placed under an undertaking not to abscond. 19. In the course of the investigation, the charges against the applicant were re-qualified from Article 125 § 1 to Article 125 § 3. 20. On 12 November 1999 the Prosecutors’ Office notified the applicant of his indictment under Article 125 § 3 and Article 126 of the Criminal Code. 21. On 15 November 1999 the investigation prepared a final bill of indictment under these provisions and gave the applicant access to the case file before its transfer for court proceedings. 22. On 26 January 2000 the Lychakivsky District Court held the first hearing in the applicant’s case. 23. In March 2000 the applicant’s case was transferred to the Shevchenkivsky District Court of Lviv (“the Shevchenkivsky Court”). 24. On 26 June 2001 the Shevchenkivsky Court found the applicant guilty of an offence under Article 125 § 3 as charged and dropped charges under Article 126 as redundant. It sentenced him to one year’s imprisonment suspended for one year and to a fine of 200 Ukrainian hryvnas (UAH). The court also allowed Mrs P.’s civil claim in part and ordered the applicant to pay her UAH 1,000 in non-pecuniary damages and UAH 100 in legal fees. 25. In its judgment the court established that in numerous letters signed by the applicant, Mrs P. had been baselessly accused of misappropriation of public funds. The court also found that the applicant had initiated and participated in the picketing of 26 May 1997, referring to various pieces of evidence, including submissions by several School employees that they had seen him during the picket holding a slogan. 26. The applicant appealed against the judgment of 26 June 2001. He alleged in particular that the prosecution had failed to prove that he had intentionally disseminated falsehoods. Furthermore, no attention had been accorded to the fact that he had acted in his official capacity as a local VOST leader, empowered by the union members to inform the authorities about Mrs P.’s official misconduct and that according to the findings of the KRU and the law-enforcement authorities his accusations had not been entirely baseless. The applicant further denied any involvement in the picketing, referring to his absence on the photographs of the picket made by the plaintiff as well as to a doctor’s certificate concerning his inpatient treatment until 27 May 1998. He also alleged that the case could not be considered under § 3 of Article 125 of the Criminal Code, as pursuant to the decision of 14 May 1998 criminal charges filed by Mrs P. under this provision had been re-qualified as charges under § 1 of Article 125. 27. On 21 August 2001 the Lviv Regional Court of Appeal heard the case in the applicant’s absence and upheld the judgment of 26 June 2001. It found, in particular, that the applicant’s guilt, including in respect of participation in the picketing, had been proved by numerous sources of evidence. In particular, several School employees attested to having seen the applicant holding a slogan during the picketing and his doctor stated that his treatment had not precluded him from leaving the hospital premises. 28. The applicant filed eleven cassation appeals, which were dismissed due to his failure to follow formalities envisaged by law. On 25 April 2003 a judge of the Supreme Court declared the applicant’s twelfth appeal in cassation, in which he raised essentially the same arguments as in his appeal, admissible. 29. On 13 November 2003 the Supreme Court upheld the previous judgments. 30. The text of Article 125 of the Code read as follows: Defamation [Наклеп], namely the intentional dissemination of falsehoods aimed at damaging the reputation of another shall be punishable by ... Defamation in print ... shall be punishable by .... Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment. 31. Article 126 of the Code provided as follows: “Insult [Образа], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ...” 32. Following a process of legislative reform, the New Ukrainian Criminal Code of 5 April 2001 no longer classifies defamation and insult as criminal offences. 33. The text of Article 27 of the Code of Criminal Procedure (governing the private prosecution proceedings, as in force before 21 June 2001) may be found in the judgment of 10 August 2006 in the case of Lyashko v. Ukraine (no. 21040/02, § 23).