HomeInsightsEuropean Court of Human Rights finds violation of Article 10 in defamation proceedings concerning politician

Article by

The applicant, Vladimir Lykin, was a Ukrainian national. The case concerned a defamation claim made against him by a local politician.

On 28 January 2007 Mr Lykin, at the time a member of the Shakhtarsk District Council and president of the local branch of the Party of the Regions, read out a letter at a local meeting. In attendance were over 40 party members and inhabitants of the village of Zolotarevka. The letter criticised the appointment of the then Deputy President of the Shaktarsk District Executive Committee. It listed a number of purported failings of the local politician, and stated that he was “a grabber and a petty tyrant”.

The local politician then issued proceedings against Mr Lykin, claiming damages for the dissemination of defamatory information. In September 2007 the Ukrainian court upheld the complaint, awarding the politician 200 Ukrainian hryvnias in damages. In particular, the court held that the letter should have been treated as an anonymous application by citizens under Ukrainian law, and that Mr Lykin had acted unlawfully by making it public without verifying its serious accusations. The Court of Appeal upheld the judgment on appeal, and in January 2008 the Supreme Court rejected Mr Lykin’s appeal.

Relying in particular on Article 10 (freedom of expression), Mr Lykin complained that by finding against him in the defamation proceedings, the domestic courts had unlawfully and unfairly curtailed his right to freedom of expression.

It was not in dispute that the Ukrainian courts’ findings against Mr Lykin constituted an interference with his Article 10 rights.

The ECtHR agreed with the Ukrainian Government that the interference pursued the legitimate aim of protecting the politician’s reputation. The question was whether the interference was also “necessary in a democratic society”.

The ECtHR noted that the test was whether the interference corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued, and whether the reasons given by the national authorities to justify it were relevant and sufficient.

Following its own case law, the ECtHR found that a politician is entitled to have his/her reputation protected, even when he/she is not acting in his private capacity, but in such cases the requirements of that protection have to be weighed against the interests of the open discussion of political issues.

What mattered, the ECtHR said, was whether the statements read out at the meeting amounted to fair comment on matters of public interest or whether, instead, they amounted to a gratuitous personal attack.

The ECtHR found that the letter implied that the politician was liable for very serious misconduct, including abuse of office, poor management and misappropriation of communal property. Whilst certain expressions were couched in very strong terms and the comments were severely critical, at the same time, the evidence indicated that the accusations against the politician were based on certain true facts and events that had generated public discussion. There was no reason to doubt that the authors of the letter had voiced their indignation in good faith.

As for the defamation proceedings, the ECtHR found that the Ukrainian courts had confined their analysis to a discussion of whether the disputed letter constituted an anonymous application within the meaning of the applicable Ukrainian law, and whether the applicant had verified the truthfulness of the negative allegations against the politician before making the letter public. They had not given any consideration to the context and the manner of dissemination of the disputed statements or to the status of the speaker and the person targeted.

The ECtHR concluded that the Ukrainian courts had failed to recognise that the case involved a conflict between the right to protection of reputation and the right to freedom of political expression and to carry out the relevant balancing exercise. Accordingly, they did not apply standards in conformity with the principles embodied in Article 10 and did not adduce relevant and sufficient reasons justifying the necessity of the interference with the applicant’s freedom of political expression. There had therefore been a violation of Article 10. (Lykin v Ukraine (19382/08) 12 January 2017 — to read the judgment in full, click here).