(Application no. 4063/04)
19 February 2009
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 Marchenko v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Isabelle Berro-Lefèvre, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 27 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Events which led to criminal charges against the applicant
B. Criminal proceedings against the applicant
II. RELEVANT DOMESTIC LAW
1. Criminal Code of 1960
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.
“Insult [Образа], namely the intentional humiliation of the honour and dignity of a person expressed in an indecent form shall be punishable by ...”
2. Code of Criminal Procedure
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF FORMULATION OF THE CHARGES
“...Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;....”
II. 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
1. Submissions by the parties
2. The Court's assessment
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
IV. 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, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage and EUR 50 (fifty euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant, to be converted into the currency of Ukraine at the rate applicable at the date of settlement;
(b) 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 19 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen