Communicated on 18 January 2021
Published on 8 February 2021
FIFTH SECTION
Application no. 46396/14
Alla Anatoliyivna UDOVYCHENKO
against Ukraine
lodged on 17 June 2014
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s conviction for defamation.
In her commentary to a TV agency given in December 2008 after a road accident to which she was an eyewitness, the applicant stated that she had seen “V.B.’s son” coming out of the driver’s side of the car. This statement was widely cited in different printed media and TV-programmes implying M.B.’s (V.B.’s son) guilt in causing the traffic accident. In the course of the investigation into the accident, the police established that another person, M., was driving the car when the accident occurred. The criminal proceedings against M. were eventually terminated for the lack of corpus delicti.
In November 2009 M.B. and V.B. lodged a defamation claim against the applicant and several media organisations which had distributed the applicant’s commentary. Later on, the claimants withdrew their claim against the media in exchange of the promise to withdraw the material concerning the road accident from the media data-base and to abstain from invoking M.B.’s involvement into the accident at issue. The applicant refused the friendly settlement proposed by the claimants.
By a final decision of 18 December 2013, the Higher Specialised Court for Civil and Criminal Matters found the applicant liable for defamation. It noted, inter alia, that the applicant had failed to provide evidence proving the truthfulness of her statement to the media. The applicant was ordered to pay the claimants 100,000 Ukrainian hryvnias (UAH) (about 8,000 euros (EUR) at the relevant time) as non-pecuniary damage; about UAH 12,000 (about EUR 1,035 at the relevant time) as pecuniary damage; and the court fees. The applicant was also ordered to retract her statement by the same means she had made it, namely through the media which had disseminated it.
Relying on Articles 6 and 10 of the Convention, the applicant complains, in essence, about the unlawful interference with her freedom of expression and, in particular, that the commentary she gave to the media did not interfere with the claimants’ reputation and that the sanction imposed on her was, in any event, disproportionate.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicant’s freedom of expression, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference prescribed by law and necessary in terms of Article 10 § 2? Was the sanction imposed on the applicant proportionate to the aim pursued? Did the sanction impose an excessive burden on the applicant?
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