Resolution CM/ ResDH(2007)13 [1]

Execution of the judgment of the European Court of Human Rights Ukrainian Media Group against Ukraine

(Application No. 72713/01, judgment of 29 March 2005, rectified on 29 March 2005, final on 12 October 2005,)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the P rotection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter referred to as “the Convention” and “the Court”);

Having regard to the judgment in this case, transmitted once it had become final by the Court to the Committee on 12 October 2005;

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the freedom of expression the applicant company owing to the lack of distinction in Law between factual statements and value judgments (violation of Article 10) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken in order to comply with Ukraine ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ' s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgment, the adoption by the respondent State, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing, similar violations;

Having examined the measures taken by the respondent state to that effect, the details of which appear in the Appendix;

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and DECIDES to close its examination.

Appendix to Resolution CM/ ResDH(2007)13

Information about the measures to comply with the judgment in the case of

Ukrainian Media Group against Ukraine

Introductory case summary

The case concerns a disproportionate interference in the freedom of expression of the applicant company, in that in 2000 a civil court found against it in defamation proceedings brought following publication in the applicant company ' s daily newspaper of two articles criticising political candidates (violation of Article 10).

The European Court found that the Ukrainian law on defamation in force at the time was not compatible with the Convention, as it required defendants to prove the truth of any impugned negative statements, irrespective of whether they were factual statements or, as in this case, value judgments which should not be susceptible of proof.

I. P ayment of just satisfaction and individual measures

a) Details of just satisfaction

P ecuniary damage

Non-pecuniary damage

Costs and expenses

Total

588,12 €

33000 €

5521,07 €

39109,19 €

P aid on 15/12/2005

b) Individual measures

The European Court awarded just satisfaction in respect of all the damages suffered by the applicant company as a consequence of the violation (see above).

II. General measures

Even before the judgment in this case was delivered by the European Court , the Ukrainian law on defamation was amended by the Law of 3/04/2003 on the “Insertion of Changes to Certain Laws of Ukraine concerning Ensuring an Unimpeded Realisation of the Human Right to Freedom of Speech”. A new Article 47-1 (“Exemption from liability”) was added to the Law of Ukraine on Information, exempting value judgments from liability. The term “value judgement” is defined as follows: “value judgements, except for insult or defamation, are expressions which contain no factual data, in particular criticism, assessment of actions as well as statements which cannot be considered as statements of fact due to the nature of the language used, in particular the use of hyperboles, allegories, satire. Value judgements are not subject to proof or refutation”.

Other important amendments introduced by the law of 3/04/2003 are as follows:

- State bodies and bodies of local self-government are prohibited from demanding non-pecuniary damages for the publication of false information, although they may demand a right of refutation. Officials acting in their personal capacity may still seek to protect their right to their honour and dignity through the courts.

- The law provides a defence of conscientious publication. It states that a journalist and/or a mass medium are exempt of liability for dissemination of false information if the court rules that a journalist acted in good faith and verified the information.

- The law establishes that a plaintiff must pay to the court a proportion of the amount claimed in compensation when filing a defamation case (through a provision added to the Law on State Duty (Article I.4)). The proportion becomes greater as the amount claimed increases. This has contributed to the reduction of the amounts imposed as awards in defamation cases;

- Compensation for non-pecuniary damage in defamation cases may only be imposed in cases of malicious intent by the journalist or media outlet which disseminated the impugned expression (through the addition of P aragraph 4 to Article 17 of the Law of Ukraine “On State Support of Mass Media and Social Security of Journalists”). Malicious intent is defined as “such attitude to the dissemination of information when a journalist and/or a representative of media outlet realises that the information is false and foresees its dangerous consequences for society.” Moreover, in such cases “the court shall also consider the consequences of the use by a plaintiff of the possibilities of pre-trial refutation of the false information, protection of his honour, dignity and settlement of the conflict on the whole”.

Furthermore, provisions of the Ukrainian Civil Code concerning defamation have been modified. Articles 277 and 302 of the Civil Code, which were criticised in the judgment, were amended by the Law of 22/12/2005. The amended Article 277 § 3 provides that “negative information shall be deemed to be false unless proven otherwise by the person who disseminated the said information.”

The relevant provision of Article 302 provides for that “[a]n individual disseminating information obtained from official sources (information of state bodies, bodies of local self-government, reports, records, etc.) is not obliged to verify its authenticity and shall not be held liable in the case of its refutation. An individual disseminating information obtained from official sources shall make a reference to its source.”

• P ublication and dissemination of the judgment : The judgment was translated into Ukrainian and placed on the Ministry of Justice ' s official web-site www.minjust.gov.ua . It has also been published in the official government ' s publication, the Official Herald of Ukraine [Ofitsiynyi Visnyk Ukrayiny], No. 7, 2006.

Moreover, to ensure a direct effect of the Convention in Ukrainian law as regards defamation proceedings, summary of the judgment was published in the official publication of the Supreme Court, the Herald of the Supreme Court of Ukraine [Visnyk Verkhovnogo Sudu Ukrayiny], No. 9, 2005 - which is distributed to all Ukrainian courts.

Furthermore, a number of round tables and seminars regarding this judgment were held, not least for judges of courts of all levels. The Union of Journalists of Ukraine , with the assistance of the Government Agent, held a special press-conference on the judgment.

[1] Adopted by the Committee of Ministers on 28 February 2007 at the 987th meeting of the Ministers’ Deputies