Udovychenko v. Ukraine

Last Updated on March 23, 2023 by LawEuro

Legal summary
March 2023

Udovychenko v. Ukraine – 46396/14

Judgment 23.3.2023 [Section V]

Article 10
Article 10-1
Freedom of expression

Unjustified civil sanctioning of road accident eyewitness, through application of “presumption of falsity, for statement of fact made in good faith to media: violation

Facts – The applicant witnessed a road accident in which a young woman, a pedestrian, was severely injured by a car. Two days later, while visiting the victim in hospital, the applicant gave a comment on the circumstances of the accident to journalists in which she stated she saw M.B., a member of the local council and the son of a former member of parliament, B., come out of the driver’s door after the collision. Subsequently, journalists and media outlets suggested in their reporting of the accident that M.B. had been implicated in it. Criminal proceedings were instigated and terminated in respect of a different individual.

B. and M.B. successfully lodged a civil claim against the applicant claiming that her statement to the journalists was false. The applicant was ordered to publish a retraction declaring her statement to be “untrue and inaccurate” and to pay each claimant compensation of about EUR 4,320 for non-pecuniary damage and about EUR 304 for pecuniary damage. The order was eventually upheld in its entirety. The applicant was also banned from leaving the country until she paid the compensation in full.

Law – The civil proceedings and the ensuing penalties against the applicant had amounted to an interference with her right to freedom of expression, had a legal basis in domestic law and had pursued the legitimate aim of protecting the reputation or rights of others, namely the good name of B. and M.B. The Court, however, considered the interference had been disproportionate to the legitimate aim pursued, and therefore had not been necessary in a democratic society for the following reasons.

The domestic courts had not considered the fact that the applicant’s comment had concerned a matter of public interest, the accident having triggered interest at a local level. Her statement about B.’s son coming out of the driver’s door had suggested that he had been among the persons involved in the accident. The facts of the case suggested that the claimants in the civil proceedings had been easily identifiable to journalists; the applicant had not suggested that her comment had concerned any other persons than those identified by the media. There had thus been an objective link between her statement and M.B. and the information she had given had been potentially capable of affecting M.B.’s and B.’s reputation, particularly given their status as elected public officials.

The domestic courts had held that the applicant’s comment had been a factual statement and had thus required her to demonstrate the truth of her assertions, as specified under Article 277 of the Civil Code, which enshrined the so-called “presumption of falsity”. Although the phrase about B.’s son coming out of the driver’s door could be seen as a statement of fact, it had been made by the applicant in her capacity as an eyewitness and had represented nothing more than a direct account of one of the factual circumstances of the road accident which she had happened to witness and which had attracted wide media attention, at least on a local level. It had been a declaration of the applicant’s personal perception of what she had witnessed at the scene. That element distinguished the present case from other cases concerning freedom of expression which had been examined by the Court, in which the factual statements made by the applicants, mainly journalists, had not been limited to what they had directly witnessed. In the specific circumstances of the instant case, the applicant could not have been expected to prove that what she believed she had seen with her own eyes had indeed taken place.

It had not been argued that the applicant, in making the comment, had failed to show due diligence or that she had acted in bad faith. Neither the claimants nor the domestic courts had ever suggested that the applicant had acted with the direct intention of harming M.B.’s and B.’s reputation by deliberately employing untrue information. In fact, the domestic courts had not examined the motive behind the comment or assessed the context in which it had been made. The comment had been made at the request of a journalist covering the accident shortly after it had taken place and long before the completion of the criminal investigation. The applicant had not used any insulting or offensive remarks about the claimants or adopted any stance as regards the guilt of any of the persons involved but had simply recounted the sequence of events she had witnessed. She had given the same testimony to the police, having been warned of the criminal liability attached to providing false evidence; there was no indication that the authorities had considered instituting a criminal investigation or proceedings against her in this regard. Likewise, it had not been suggested that her comment had breached the secrecy of the investigation or otherwise revealed any confidential information relating to any ongoing criminal proceedings. In fact, it did not appear that M.B. had at any time been suspected or accused of having caused the accident and thus, that there had been two competing interests involved relating to two rights which enjoyed equal protection, under Article 10 and Article 6 § 1 respectively.

There were no grounds to call into question the applicant’s account that when giving her comment to the media she had been convinced of the truthfulness of her statement and thus had acted in good faith and in the belief that it had been in the public interest to disclose the circumstances of the accident which she had witnessed. Her comment was to be seen as a statement of fact on a matter of public concern rather than a gratuitous attack on the claimants’ reputation. The fact that the official investigation had not confirmed that M.B. had been the driver of the car had had no bearing on this conclusion in the absence of any indication of bad faith on the applicant’s part.

Allowing witnesses of events that might have involved criminal offences to convey publicly, in good faith, what they had directly observed and duly reported to the authorities, unless they were bound by the secrecy of investigations, was an aspect of the protection of freedom of expression, and, in certain circumstances, could be in the public interest. In the absence of any allegation of bad faith on the applicant’s part, to require her to prove the truthfulness of her statement about the circumstances of the road accident she had witnessed – a requirement that would have been very difficult, if not impossible, to fulfil – had not been consistent with the principles laid down in the Court’s case-law. As the domestic courts had limited their analysis to the question whether the applicant had proved her statement, the reasons they had given could not be regarded as relevant and sufficient to justify the interference at issue.

The Court also noted the inappropriateness and severity of the consequences which the applicant had been made to bear, the imposition of which were not justified by the circumstances of the case. In particular, it was inappropriate that she had been ordered to publish a retraction in terms which had required her to declare, essentially, that she had not seen what she had believed to have seen; the amount of damages which she had been ordered to pay had been very considerable when weighed against her salary – evidence submitted by her showed she struggled to pay for more than five years –; and she had been banned from travelling abroad until the balance had been paid in full.

Conclusion: violation (unanimously).

Art 41: EUR 14,300 awarded in respect of pecuniary and non-pecuniary damage.