(Application no. 21040/02)
10 August 2006
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Lyashko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego, judges,
and Mrs C. Westerdiek, Section Registrar,
Having deliberated in private on 10 July 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
1. Newspaper articles, published by the applicant
“Who could imagine that a former Komsomol bureaucrat, police pen-pusher and near-political schemer would occupy today one of the highest posts in the Government? The press is what the sinister Premier hates the most, as he fears public opinion. He did not forget that in March this year our newspaper accused him of plotting against Prime Minister Lazarenko. And as soon as he got the chance, he triggered the punitive mechanisms to suppress the independent media. For instance, he accused Alekzandr Stroginenko, the President of the Black Sea Shipping Company, of financing Polityka. Stroginenko’s “error” was that he had concluded a contract with us to issue promotional materials for the BSSC. The newspaper spent tens of thousand dollars from its own pocket, but has not yet received full payment for the published materials.
Without waiting for the results of a ministerial inquiry, on Monday before last, the acting Prime Minister, in the absence of both the President, who was in New York, and the Prime Minister, who was hospitalised, summoned the Cabinet of Ministers and forced a decision to dismiss the president of the BSSC.”
“...As we have learned, immediately after the release of the article [Durdintsovshchina], Durdinets summoned the General Prosecutor, Grigory Vorsinov, to his office and, showing him the newspaper, demanded that criminal proceedings for defamation be instituted against the author... Any other person, who considers himself to be defamed or insulted, would go to a court of law to make his case publicly. But Durdinets has no regard for civil rights as he attempts to use his powers as a high ranking governmental official. So it is worth mentioning here the abuse of power, as neither I nor any of our readers can summon Vorsinov to his office, the less so to demand the institution of criminal proceedings against one’s opponent. The acting Prime Minister considers that he can give orders to the General Prosecutor (although the law provides for the independence of the latter), and he does so.”
The article stated, inter alia, that:
“An ... inquiry revealed that ... S. was never employed by the Tax Police. The person who had blackmailed [local businessmen] was a former police officer, S., and the photographs [which he had showed to prove his authority] contained images of high officials of the Odessa Regional Police Department.
But where did the ex-policeman ... get the photographs of G. and his deputies drinking with him and hugging him? Now he is showing these photographs to [businessmen] and thereby collects money for ... life.
The examination of this relationship clarifies the statements of S. ... that ‘they will stand for me ...’.
This story seems to prove the corruption in the Odessa Regional Police Department we were writing about.”
“The scandal surrounding the head of the Odessa Regional Police Department, General G., continues. Condemned by the press for having patronised criminals, the General stands on firm ground so far.
When we published ‘The Rogue and the General’, we did not know that S. and Grigorenko were brothers-in-law. ... The unlawful activity of S. is blessed by the figure of General G....”
2. Criminal proceedings against the applicant
II. RELEVANT DOMESTIC LAW
1. Constitution of Ukraine of 1996
“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
“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.”
2. The Criminal Code of 1961
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 up to three years’ imprisonment or a fine from 50 to 100 minimal monthly salaries.
Defamation linked with an unfounded accusation of committing a grave offence shall be punishable by up to five years’ imprisonment.
Article 165 of the Code provided as follows:
Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by between two and five years’ imprisonment or by up to two years’ correctional labour with up to three years’ prohibition of employment in certain occupations.”
3. The Criminal Code of 2001
Abuse of power or office, namely intentional, lucrative or with other personal interest or the interest of third persons, use by official of his/her power or office against the interest of service, if it caused serious damage to the State or public interests or to lawful interests of natural or legal persons shall be publishable by up to two years’ correctional labour or by up to six months’ arrest or by up to three years’ limitation of freedom with up to three years’ prohibition of employment in certain occupations.”
4. The Code of Criminal Procedure
“The cases concerning crimes stipulated in Articles 125 ... of the Criminal Code of Ukraine, if the damage is caused to the rights and interests of citizens are instituted only upon the complaint of the victim, who conducts the prosecution in court. In such cases there is no pre-trial investigation.
...If the case concerning any crime referred to in paragraph 1 of this Article has special public interest ...the prosecutor may institute the case in absence of the victim’s complaint. The case instituted by the prosecutor should be sent to the pre-trial investigation and, thereafter, is tried under the general rules.”
5. The Law “on Prosecution” of 1991
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Arguments of the parties
1. The Government
2. The applicant
B. The Court’s assessment
1. General principles
(a) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (cf., Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII; and Fuentes Bobo v. Spain, no. 39293/98, § 43, 29 February 2000).
(b) The press plays an essential role in a democratic society. Although it must not overstep certain bounds, regarding in particular protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to justice (see De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233-34, § 37 and, mutatis mutandis, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 92-110, ECHR 2004 ...). Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (see Thorgeir Thorgeirson v. Iceland, judgment of 25 June 1992, Series A no. 239, p. 27, § 63). Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 25, § 57). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38, and Thoma v. Luxembourg, no. 38432/97, §§ 45 and 46, ECHR 2001-III).
(c) 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 (see Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, § 42).
(d) The limits of acceptable criticism may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. It cannot be said, however, that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to criticism of their actions. Civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks. It may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty (see Janowski, cited above, § 33 and Nikula v. Finland, no. 31611/96, § 48, ECHR 2002 II).
(e) Moreover a clear distinction has to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 (see Lingens, cited above, p. 28, § 46).
(f) The nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (cf., Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV, and Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001-I). Furthermore, the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media. Nevertheless it remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal law nature, intended to react appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, judgment of 23 April 1992, Series A no. 236, § 46).
2. Application of the above principles in the present case
a. Whether the measure was prescribed by law and pursued a legitimate aim
Therefore, the applicant’s assertions that the dismissal in issue was unlawful and caused by personal bias on the part of Mr Durdynets are value judgments used in the course of public debate which are not susceptible of proof.
The statement that “the unlawful activity of S. is blessed by the figure of General G.” was a value judgment which, in the circumstances, cannot be said to be devoid of any arguable basis.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts:
(i) EUR 2,000 (two thousand euros) in respect of pecuniary and non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that the above amounts shall be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 10 August 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen