A charge with a large compensation on an eyewitness of a traffic accident for the statements he made to a journalist! Violation of freedom of expression

Article 10
27/03/2023 08:26
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JUDGMENT

UDOVYCHENKO v. UKRAINE 23.03.2023 (app. no. 46396/14)

SUMMARY

Freedom of expression of an eyewitness. Obligation of the courts to give adequate reasons for decisions.

The applicant was a witness of a road accident of public interest. While visiting the victim in hospital, the applicant gave a comment on the circumstances of the road accident to journalists covering the event. She stated that the son of a former member of parliament came out of the driver’s door. Both father and son lodged a civil claim against the applicant. The claimants ordered the applicant to retract the disputed statement by making a new one and the court also ordered her to pay each claimant 50,000 Ukrainian hryvnias (UAH – about 4,320 euros (EUR) at the time) in compensation for non-pecuniary damage and UAH 3,546.30 (about EUR 304 at the time) in respect of pecuniary damage. She was also banned from leaving Ukraine until she had paid the compensation in full. Relying on Articles 6 and 10 of the Convention, the applicant complained that the civil proceedings against her and the ensuing penalty had been in breach of her right to freedom of expression.

The Court took the view that allowing witnesses of events that may have involved criminal offences to convey publicly, in good faith, what they have directly observed and duly reported to the authorities, unless they are bound by the secrecy of investigations, is an aspect of the protection of freedom of expression, and, in certain circumstances, can be in the public interest.

According to the Court, the penalties imposed to the applicant were inappropriate and severe, while the domestic courts failed to give relevant and sufficient reasons.

In sum, the Court concluded that the national authorities’ reaction to the applicant’s statement concerning the circumstances of the road accident she had witnessed was disproportionate to the legitimate aim pursued, and was therefore not necessary in a democratic society within the meaning of Article 10 § 2 of the Convention.

There had accordingly been a violation of Article 10 of the Convention. The Court awarded the applicant EUR 14,300, in respect of pecuniary and non-pecuniary damage and EUR 3,450, in respect of costs and expenses.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Alla Anatoliyivna Udovychenko, is a Ukrainian citizen who was born in 1977 and lives in Rivne (Ukraine).

On 2 December 2008 the applicant witnessed a road accident in Rivne city centre in which a young woman, a pedestrian, was severely injured by an Audi Q7 car with Kyiv-registered plates. On 4 December 2008, while visiting the victim in hospital, the applicant gave a comment on the circumstances of the road accident to journalists covering the event, who were also present at the hospital. In that comment, made at the request of a journalist, the applicant stated that the son of a former member of parliament came out of the driver’s door.

In November 2009 B. and M.B. lodged a civil claim against the applicant, accusing her of having made a false statement to the media in saying “B.’s son came out of the driver’s door”. According to them, the applicant’s statement implied that M.B. had been guilty of causing the road accident and was the source of the accusations against M.B. in the media.

Applying the so‑called “presumption of falsity” set by Article 277 of the Civil Code, the Rivne Court asked the applicant to prove the truthfulness of her factual statement, noting that it had not been confirmed by the results of the criminal investigation that M.B. had been the driver of the car. Finding further that neither the applicant nor the witnesses questioned during the proceedings before it had proved the contrary, the court concluded that her statement, which had been widely spread by the media and used as a source for their allegations against M.B., was untrue and harmful to the honour, dignity and reputation of the claimants, given that they were well-known public figures. She was ordered to to pay each claimant 50,000 Ukrainian hryvnias (UAH – about 4,320 euros (EUR) at the time) in compensation for non-pecuniary damage.

She lodged an appeal but it was rejected.

The obligation to make the retraction statement was fulfilled by the applicant in February 2013. As regards the payment of damages, the enforcement proceedings lasted from July 2012 until January 2018. She was also banned from leaving Ukraine until she had paid the compensation in full.

In the course of the investigation, before the claim against the applicant was lodged, into the circumstances of the accident the police established that a local businessman, whose name was M., had been the driver of the car in question and instituted criminal proceedings against him. In June 2009 the criminal investigation was terminated since it was established that the victim had been crossing the road but not using the pedestrian crossing, making it impossible for M. to avoid the collision.

Relying on article 10, the applicant complained for the porceedings against her.

THE DECISION OF THE COURT…

In the present case, the Court agreed with the domestic courts that the phrase about B.’s son coming out of the driver’s door can be seen as a statement of fact. It noted, however, that the factual allegation was made by the applicant in her capacity as an eyewitness and represented nothing more than a direct account of one of the factual circumstances of the road accident which she had happened to witness and which attracted wide media attention, at least on a local level. It was a declaration of the applicant’s personal perception of what she had witnessed at the scene. This element makes the present case different from other cases concerning freedom of expression which have been examined by the Court, in which the factual statements made by the applicants, mainly journalists, were not limited to what they had directly witnessed. The Court considered that in specific circumstances such as obtained in the present case, in accordance with the principles underlying its case-law under Article 10 of the Convention, the applicant could not have been expected to prove that what she believed she had seen with her own eyes had indeed taken place. It has not been advanced that in making her statement of fact the applicant failed to show due diligence. In this context, regard being had to the criteria developed in the Court’s case-law, it additionally has to be examined whether the applicant acted in good or bad faith when making her comment.

The Court observed that neither the claimants nor the domestic courts ever suggested that the applicant had acted with the direct intention of harming M.B.’s and B.’s reputation by deliberately employing untrue information. In fact, the domestic courts never tried to examine the motive behind the applicant’s comment but found this element to be irrelevant. They also did not assess the context in which the statement had been made.

The Court further observed that the comment was made at the request of a journalist covering the road accident shortly after the accident had taken place and long before the completion of the criminal investigation. The applicant did not use any insulting or offensive remarks about the claimants or adopt any stance as regards the guilt of any of the persons involved but simply recounted the sequence of events she had witnessed on the road.

Moreover, it was not contested by the domestic courts during the proceedings or by the Government that the applicant had given the same testimony to the police, having been warned that criminal liability attached to providing false evidence. The Court observed that there is no indication that the domestic authorities instituted or ever considered instituting a criminal investigation or proceedings against the applicant on account of the allegedly false evidence, although giving false evidence is criminally punishable under domestic law. Likewise, it has not been suggested by the Government that by giving her comment the applicant breached the secrecy of the investigation or otherwise revealed any confidential information relating to any ongoing criminal proceedings (see and compare Brisc v. Romania, no. 26238/10, §§ 109-15, 11 December 2018). In fact, it did not follow from the Government’s submissions that M.B. was at any time suspected or accused of having caused the accident at issue and that there were thus two competing interests involved relating to two rights which enjoyed equal protection, under Article 10 and Article 6 § 1 of the Convention respectively.

On the basis of the material before it, there were no grounds for the Court to call into question the applicant’s account that when giving her comment to the media she was convinced of the truthfulness of her statement and thus acted in good faith and in the belief that it was in the public interest to disclose the circumstances of the road accident which she had witnessed. In this regard, the Court could also accept that her comment is to be seen as a statement of fact on a matter of public concern rather than a gratuitous attack on the reputation of the claimants. The fact that the official investigation did not confirm that M.B. was the driver of the car has no bearing on this conclusion in the absence of any indication of bad faith on the applicant’s part.

In the light of the material before it, the Court found that in the absence of any allegation of bad faith on the applicant’s part, to require her to prove the truthfulness of her statement about the circumstances of the road accident she had witnessed – a requirement that would have been very difficult, if not impossible, to fulfil – was not consistent with the principles laid down in the Court’s case-law. As the domestic courts limited their analysis to the question whether the applicant had proved that B.’s son had come out of the driver’s seat after the accident occurred, the reasons they gave cannot be regarded as relevant and sufficient to justify the interference at issue.

The Court also could not but note the inappropriateness and severity of the consequences which the applicant was made to bear. It found it inappropriate that she was ordered to publish a retraction in terms which required her to declare, essentially, that she had not seen what she believed to have seen. Furthermore, the amount which the applicant was ordered to pay to the claimants in damages was very considerable when weighed against her salary. The evidence submitted by the applicant shows that she struggled to pay that amount for more than five years and that during those years she was banned from travelling abroad until she paid it in full. The circumstances of the case disclosed no justification for the imposition of such consequences on the applicant.

There had accordingly been a violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The Court awarded the applicant EUR 14,300, in respect of pecuniary and non-pecuniary damage and EUR 3,450, in respect of costs and expenses.