Information Note on the Court’s case-law No. 116
February 2009
Marchenko v. Ukraine - 4063/04
Judgment 19.2.2009 [Section V]
Article 10
Article 10-1
Freedom of expression
Public servant sentenced to a suspended prison term for publicly accusing his superior of misappropriation and requesting an official investigation: violation
Facts: The applicant was a teacher and the head of a trade union in the school where he worked. Following allegations against the school director of misuse of school property, the applicant lodged a series of complaints in early 1997 with a public auditing service responsible for examining the use of funds by State-owned entities. He alleged that the director had misappropriated humanitarian aid given to the school, had used the school car, TV set and video equipment for private purposes and had taken bricks from one of the school walls. The public auditing service found no evidence to suggest misappropriation of school property by the director. Subsequently, the applicant lodged two criminal complaints against the director, both of which were dismissed for lack of evidence. Representatives of the applicant’s trade union organised a picket at the local administration offices and displayed banners with slogans accusing the director of professional misconduct and abuse of office. The director brought a private prosecution against the applicant, who was convicted of defamation in 2001. The courts gave him a suspended one-year prison sentence and a fine and ordered him to pay damages to the director.
Law: The signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace had to be protected. However, despite being a union representative acting on a matter of public concern, the applicant had a duty to respect the reputation of others, including their right to be presumed innocent, and owed loyalty and discretion to his employer. In the light of that duty, any disclosure should be made in the first place to the person's superior or other competent authority or body and, only as a last resort, to the public. In so far as the applicant’s conviction was based on the letters he had sent to the public auditing service and the prosecutor’s office demanding investigations into the director’s purported official misconduct, he could not be accused of bad faith, as he had acted on behalf of his trade union and presented various evidence in support of his allegations. That interference with his freedom of expression had therefore not been “necessary”. In so far as the applicant's conviction was, however, based on his participation in the picketing, the accusations against the director, phrased in particularly strong terms and displayed in the slogans, could be taken as allegations of fact, which, in the absence of sufficient proof of their validity, could have reasonably been deemed defamatory and undermining of the director’s right to be presumed innocent of serious offences. Moreover, neither the applicant, nor his supporters had ever attempted to employ any of the procedural means available under domestic law to challenge the inefficiencies of the investigations and the refusals to institute criminal proceedings against the director. The domestic authorities had therefore acted within their margin of appreciation in considering it necessary to convict the applicant of defamation on this account. However, a one-year prison sentence could not be justified in the context of a classic defamation case concerning a debate on a matter of public interest. The fact that the sentence was suspended did not alter that conclusion as the conviction itself had not been expunged. The domestic courts had therefore gone beyond what would have amounted to a “necessary” interference with the applicant's freedom of expression.
Conclusion: violation (unanimously).
Article 41 – EUR 1,000 in respect of pecuniary and non-pecuniary damage.
See also Guja v. Moldova, Information Note no. 105.
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This summary by the Registry does not bind the Court.
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