Defamation proceedings of a judge against a newspaper. Lack of impartiality and violation of the freedom of expression regarding the condamnation of the newspaper
JUDGMENT
Editorial Board of Grivna Newspaper v. Ukraine 16.04.2019 (no. 41214/08 and 49440/08)
SUMMARY
Defamation proceedings of judge against in a newspaper for two articles referring to him. References to corruption complaints against him and presentation of photographs, one of which showed him in formal dress and brought the caption: “I will compensate them according to their deeds (the Old Testament).” The applicant newspaper complained about the impartiality of the judge who examined the case at first instance and for violation of its freedom of expression. The Court considered that the applicant’s fears could be regarded as objectively justified. Although the lack of impartiality of the court of first instance could be remedied by examining this complaint before the Court of Appeal or the Supreme Court, none of the two courts took it into account. Infringement of Article 6 (right to be heard) of the ECHR. Infringement of Article 10 with regard to the judgments of the Ukrainian courts for six extracts in the first article at issue, the photograph with the biblical reference and two statements in the second article.
PROVISIONS
Article 6
Article 10
PRINCIPAL FACTS
The applicant company, the Editorial Board of Grivna Newspaper, is based in Kherson (Ukraine) and
publishes Grivna, a regional newspaper.
The case concerned defamation proceedings brought by a judge against the applicant company
following Grivna’s publication of two critical articles about him in 2006.
Both articles focused on Parliament delaying the judge’s lifetime appointment following accusations
of corruption. The first covered the parliamentary debate about the allegations of misconduct. The
second reported on the defamation claim the judge had brought about the first article, and
suggested that he had been involved in an attack on an aggrieved litigant.
The courts found the articles insulting and harmful to the judge’s reputation rather than informative.
In the first the courts took issue in particular with a suggestion that a relative at the Supreme Court
had helped to make him “feel more confident”, with a photograph presenting him “in a certain light”
taken without his consent, and with quotes from a report on the judge’s alleged network of persons
of influence. The court also concluded, among other things, that the second article’s allegations
about the aggrieved litigant had not been based on “incontrovertible facts”.
The courts’ decisions were upheld on appeal and the applicant company had to pay the equivalent
of 148 euros (EUR) in court fees in respect of the first article and EUR 7,450 in compensation in
respect of the second.
During the proceedings concerning the first article the Supreme Court reassigned the case to
another region following a request by the applicant company in which it expressed doubts about the
impartiality of the first-instance judge. This reassignment came, however, to late because the judge
in question had already delivered the judgment.
Relying on Article 6 § 1 (right to a fair hearing) of the Convention, the applicant company complained
in particular that the trial judge examining its case had not been impartial. It also complained under
Article 10 (freedom of expression) about the domestic court decisions holding it liable for
defamation.
THE DECISION OF THE COURT
Violation of Article 6 § 1 (right to impartial tribunal)
The judge occupies a prominent place in the “judicial system” of the area to which he belongs. The process of changing local jurisdiction was intended to ensure the necessary safeguards so that parties can not doubt the impartiality of the courts.
The fact that the application for change of local jurisdiction was eventually upheld proves that the fears of the applicant company were not held to be unfounded by the Supreme Court. Since the judge in the case failed to allocate sufficient time to complete the procedure and deprived of its practical effect, the applicant’s fears of impartiality can be considered to be objectively justified.
It is true that the applicant had access to the Court of Appeal, which had full jurisdiction to assess factual and legal assertions. The impartiality of this court can not be denied. This may be considered sufficient to remedy the breach of the Court’s impartiality requirement. However, as regards the handling of the complainant’s complaints concerning a alleged lack of impartiality, neither the Court of Appeal nor the Supreme Court took them into account.
Consequently, there has been a violation of Article 6 § 1 of the Convention due to the lack of objective impartiality on the part of the trial judge in the proceedings under the first article.
Infringement of Article 10 – as regards the judgments of the Ukrainian courts on the six passages in the first article, the photograph with the biblical reference and two statements in the second article.
No violation of Article 10 – as regards the judgments of the Ukrainian courts regarding the other disputed elements of the two articles.
Just satisfaction: € 4,000 (moral damage) (echrcaselaw.com editing).
