A foothold for the media during elections
European Court’s ruling in favor of <I>The Day</I> is final
Last week it was learned that the European Court of Human Rights ruling on “Ukrainian Press Group vs. Ukraine” dated March 29, 2005, came into force on Oct. 12, 2005, says lawyer Dmytro KUTAKH, who represented The Day in this case. (In that ruling, the European Court found the State of Ukraine guilty of infringing the right to free expression on the basis of a lawsuit launched by the Ukrainian Press Group, the publisher of The Day ). The newspaper published two articles about Petro Symonenko and Natalia Vitrenko during the 1999 presidential campaign. The politicians responded by suing the newspaper in a Ukrainian court, demanding a retraction of the allegedly false information about them, as well as financial compensation for moral damages. Although the two articles contained nothing but a journalist’s value judgments, the Ukrainian courts ruled, contrary to existing European practice, that these value judgments were erroneous and The Day should pay the two politicians compensation for moral damages. Now that the European Court of Human Rights has handed down the final ruling about the Ukrainian Press Group’s claim, the State of Ukraine must pay The Day compensation for moral damages and court costs. The most important achievement for Ukrainian journalism and the entire media community is the very fact that such a ruling was handed down. The text of the ruling gives a detailed analysis of Ukrainian media legislation and the state of freedom of speech in Ukraine.
The Day asked lawyer Dmytro KUTAKH to give a more detailed account of the final phase of the case that was launched in 1999.
“After the European Court handed down a ruling on the Ukrainian Press Group vs. Ukraine, the Ministry of Justice of Ukraine appealed on behalf of the government to the European Court’s Grand Chamber. The five judges of this chamber dismissed the appeal on Oct. 12, 2005. Therefore, in compliance with Article 44, Part 2, of the Convention on Human Rights and Fundamental Freedoms, the March 29, 2005, ruling was recognized as final. On Oct. 13, 2005, we received notification of this.”
“What legal and sociopolitical consequences will this decision have?”
“We are approaching the next parliamentary elections, and the European Court’s ruling on the Ukrainian Press Group’s lawsuit is the most convincing reflection of what the press is allowed to do during elections. Why? The dispute before the European Court was sparked by the rulings of Ukrainian courts, which imposed sanctions on The Day for the articles about Symonenko and Vitrenko, the leaders of the Communist and Progressive Socialist parties, respectively. In the light of the amendments introduced to the laws on elections to central and local legislative bodies and the restrictive clauses in our media laws that are valid during an election campaign (e.g., the Central Electoral Commission is authorized to suspend or close a certain mass medium if it has committed a legal infraction or spreads false information about parties or blocs), the European Court’s ruling seems especially significant. These legislative innovations are dangerous not because the CEC may close some media during the election campaign but because hundreds of media outlets and thousands of journalists will refrain from constructive criticism of politicians and political parties (blocs) out of fear that their media might be closed under the new clauses without due investigation and a trial. From this angle, the European Court’s ruling is important because it permits fair criticism of politicians.”
“How does the European Court’s ruling relate to these amendments to the law, which shackle the media?”
“The ruling is in full compliance with the Constitution of Ukraine and the right of individuals to information and freedom of speech; it also explains fundamental points in minute detail. I think it is on a par with the provisions of the Law ‘On the Election of People’s Deputies of Ukraine.’ The European Court’s ruling explains in greater detail what is allowed during elections with respect to politicians and political parties, what the press is or is not allowed or supposed to do; it also describes the state of our media laws, etc. During the upcoming election campaign the European Court’s ruling on the Ukrainian Press Group’s lawsuit will be one of the media’s pillars of support. All lawyers and journalists will be challenging election campaign media lawsuits with this ruling.”
“What overall conclusion can the Ukrainian media and politicians draw from the European Court’s ruling?”
“It is crystal clear that politicians can be subjected to as much criticism as possible. Even if certain politicians are portrayed in a sarcastic or even humiliating (in their opinion) manner, the mass media have the right to do this because society’s interests demand it.”
N.B. In view of the significance of the European Court’s ruling for the Ukrainian mass media during election campaigns, The Day will publish Dmytro Kutakh’s Ukrainian translation of the complete text.
