Information Note on the Court’s case-law No. 114
December 2008
Vitrenko and Others v. Ukraine - 23510/02
Decision 16.12.2008 [Section V]
Article 10
Article 10-1
Freedom of expression
Warning issued against a politician for calling her opponent a thief in a live television broadcast during the electoral period and court order granting her opponent a right to reply: inadmissible
The first applicant was the leader of the Progressive Socialist Party of Ukraine. She stood as a candidate for the 2002 parliamentary elections. Some weeks before the elections, one of the television channels scheduled a political debate but cancelled it at the last minute. Ms Tymoshenko, who was due to appear for the debate with the first applicant, was not allowed on to the premises of the channel by the security. Being unaware of these facts, the first applicant reacted during the live broadcast to the non-appearance of her counterpart by saying “She definitely knew that I would prove that she was a thief... She deliberately did not come here and she will never wash out her guilt...”. Upon a complaint by Ms Tymoshenko, the Central Electoral Commission gave an official warning to the first applicant, finding that she had infringed electoral legislation and the principle of the presumption of innocence enshrined in the Constitution of Ukraine. This warning was published in the two official newspapers. The first applicant unsuccessfully challenged this decision before the Supreme Court. Following these events, Ms Tymoshenko instituted defamation proceedings against the first applicant. Seeking to confirm her statements made on television, the first applicant requested the court to obtain from the General Prosecutor's Office and the State Tax Administration copies of the decisions relating to the investigation of the criminal cases pending against Ms Tymoshenko. This request was rejected as irrelevant to the proceedings in question. The court found in part against the first applicant. In particular, it established that Ms Tymoshenko had never been convicted of theft or a similar criminal offence. Thus, the statements of the first applicant violated her right to be presumed innocent. It also found untruthful the first applicant's statement accusing Ms Tymoshenko of deliberate failure to appear for the television debate in question. The court ordered the channel to ensure that Ms Tymoshenko was given 50 seconds of live broadcast in which to correct the statements disseminated about her by the first applicant. It also ruled that the first applicant had to pay for the broadcast. Arguing that the term “thief” was a value judgement, the first applicant appealed, to no avail.
Inadmissible: The warning issued by the Central Electoral Commission, as well as the sanctions imposed by the courts, constituted an interference with the applicant's right to freedom of expression. The interference was “prescribed by law” and pursued the legitimate aim of protecting “the reputation or rights of others”. From the materials submitted by the parties, the word “thief” ordinarily suggested involvement in criminal activities and this would most likely be the meaning understood by the public. Therefore, it was not a mere value judgment but an untrue statement of fact. Notwithstanding the particular role played by the first applicant in her capacity as a candidate for election to Parliament and in the context of her political campaign, her criticism of a political opponent had included untrue accusations which entitled the domestic authorities to consider that there were relevant reasons to take action against her. In addition, it should be noted that the applicant had accused Ms Tymoshenko in her absence. Though the event may be considered to have been part of a public debate, there had been no actual heated exchange within a live television broadcast where political leaders may overstep certain limits. In the circumstances of the present case, the decisions of the domestic authorities to issue a warning to be published in the newspapers and to provide Ms Tymoshenko with the opportunity to rebut the accusations in the same forum where they had been made could reasonably be considered to be in line with the principles established in the Court's case-law.It could not be said that the authorities had overstepped their margin of appreciation: manifestly ill-founded.
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This summary by the Registry does not bind the Court.
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