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13.03.2017

EU: ECtHR on elected officials and their right of free speech

Tobias Raab

On 12 January 2017, the European Court of Human Rights (ECtHR) decided that in an Ukrainian case of defamation proceedings, domestic courts had disregarded the high requirements of Article 10 of the European Convention on Human Rights (ECHR) to restrict political speech (case no. 19382/08)

The legal dispute started after the defendant, the president of an Ukrainian political party, read a letter out loadly at an event with more than forty other local party members. The letter included a couple of very critical statements about one of the party members, the plaintiff. The letter stated that the plaintiff destroyed all of the jobs in their village during the four years of his Presidency of the Village Council. The letter also called him „a gabber and a petty tyrant“, who was accepting a salary, but doing no work, and getting away with misspending funds. Following the defendant, the plaintiff was given the floor to respond. He explained that the statements lacked any evidential basis whatsoever. The plaintiff sued the defendant for defamation. Ukrainian Courts upheld his defamation claim, stating that the defendant’s statements had been made publicly without giving any verification for the included serious accusations. After exhausting all Ukrainian Courts, the defendant argued that his conviction for defamation violated his right to free speech under Article 10 ECHR and applied to ECtHR.

The Court made clear that defamation proceedings had to be “necessary in a democratic society” in order to be justified under Article 10 (II) of the Convention. Regarding the present case, the Court decided they were not necessary. The Court repeated its case law that while a politician has the right to have his reputation protected, the requirements of that protection have to be weighed against the interests of open discussion of political issues, as politicians represent the people.

First, the Court pointed out that the present statements, which referred to the performance of a local politician, were read aloud by a public speaker during an event of a political party, and therefore represented political speech. The domestic courts had failed to take those facts into consideration. The Court stated that even though political insults often spill into the personal sphere, such were the hazards of politics and the free debate of ideas, which guarantee a democratic society.

The Court also stated that it was not just important, whether every statement had been proven by concrete facts. Even though the letter included very critical accusations and comments on serious misconduct, evidence had shown that they were based on several facts and events that had led to public discussion. In addition, the letter itself was to be regarded within the time and place, in which it had been read: in front of a usually well informed audience and the plaintiff was given the chance to listen to the letter and take the floor to respond. Under these circumstances, the ECtHR decided that, in the present case, the high requirements under Article 10 to restrict political speech had not been met.

Tobias Raab is an Attorney at Law at the German law firm Stopp Pick & Kallenborn and publishes abstracts for the Institute of European Media Law (EMR), Saarbrücken/Brussels.

More:

Read the entire ECHR’s judgement in English language.

 



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