peuterey collezione 2014 CASE OF EDITORIAL BOARD OF PRAVOYE DELO AND SHTEKEL v
1. The case originated in an application (no. 33014/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the editorial board of the newspaper Pravoye Delo (“the first applicant”) and a Ukrainian national Mr Leonid Isaakovich Shtekel (“the second applicant”) on 22 August 2005.
2. The applicants were represented before the Court by Ms L. V. Opryshko, a lawyer practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, of the Ministry of Justice.
3. On 13 October 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 1).
I. THE CIRCUMSTANCES OF THE CASE
4. The first applicant is the editorial board of Pravoye Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor in chief of Pravoye Delo. He lives in Odessa.
5. At the material time Pravoye Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in Ukraine and, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet.
6. On 19 September 2003 Pravoye Delo published an anonymous letter, allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had 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. One of the paragraphs of the letter read as follows:
” The Deputy Head of [the Odessa Regional Department of the Security Service] [I. T.], a close friend and assistant of the Head of the Department P., established ‘business’ contacts with [the organised criminal group] of [A. A.] A member of [the organised criminal group] G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board:
“When publishing this letter without the knowledge and consent of the editor in chief, I understand that I may not only face trouble but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. Moreover, [it is to be noted] that the Department [of the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] I remind [you] that the [Pravoye Delo] newspaper is wide open for letters in reply and comments from all interested agencies.”
8. In October 2003 G. T., who lived in Odessa at the time and was the President of the Ukraine National Thai Boxing Federation, brought defamation proceedings in the Prymorskiy District Court of Odessa against the applicants. G. T. alleged that the information in the 19 September 2003 issue of Pravoye Delo concerned him, and that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH).
9. 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 making 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 applicants also submitted that if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close.
10. Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “G. T.” who was being referred to.
11. On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented Ukraine at sports events abroad in his capacity as President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was true. It found no grounds on which to exempt the applicants from civil liability under section 42 of the Press Act, as the Internet site to which they had referred was not printed media registered pursuant to section 32 of the Press Act.
12. The court ordered the first applicant to publish a retraction of the following content of the publication:
” A member of [the organised criminal group], G. T., an agent of [A. A.], who is in charge of the main areas of activities of the gang [is] a coordinator and sponsor of murders, [he] meets with [I. The court further ordered the second applicant to publish an official apology in the newspaper.
14. In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,000 and found it reasonable to order the applicants jointly to pay G. T. UAH 15,000 for non pecuniary damage. The applicants were also ordered to pay to the State Budget UAH 750 in court fees.
15. The applicants appealed. They maintained the submissions they had made before the first instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor in chief in accordance with the law. Thus, in their view, they could not take part in the proceedings.
16. The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on State Support of Mass Media and Social Protection of Journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of significant public interest. According to them, it was their duty to disseminate the material and the public had a right to receive it.
18. On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants’ appeals and upheld the judgment of the first instance court.
19. On 3 July 2006 the applicants and G. T. concluded a friendly settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation awarded in the judgment of 7 May 2004. The applicants, for their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoye Delo promotional and informational materials at G. T.’s request, the volume of which was limited to the amount of compensation under the judgment.
20. In 2008 the applicants discontinued publishing Pravoye Delo.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine of 28 June 1996
21. Relevant extracts from the Constitution read as follows:
” 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 pecuniary and non pecuniary 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.