Case Summary and Outcome

The European Court of Human Rights held that the applicant’s criminal conviction for disseminating false information during an election campaign violated the right to freedom of expression. The case arose from the applicant’s distribution of a forged newspaper containing false information about a presidential candidate during a national election. While the Court accepted that the interference with expression was prescribed by law and pursued a legitimate aim related to protecting voters’ rights, it found that the domestic authorities failed to justify the necessity of criminal sanctions. The Court emphasized the heightened protection afforded to political expression during elections and stressed that the mere dissemination or discussion of information received from the media, even if false, is not automatically excluded from protection. It further considered the limited impact of the applicant’s conduct and the severity of the penalties imposed. The Court concluded that the interference was disproportionate and not necessary in a democratic society.

Facts

The applicant, Sergey Petrovich Salov, was a Ukrainian lawyer and the officially registered representative of presidential candidate Olexander O. Moroz during the 1999 Ukrainian presidential elections. During the election campaign, the applicant received from unknown sources several copies of a forged edition of a national parliamentary newspaper. The publication falsely reported that the incumbent President had died and been replaced by a lookalike, and alleged that a coup d’état had occurred. The applicant distributed a small number of these copies to voters in his electoral district and discussed their content with them.

The Kyivsky District Prosecution Service of Donetsk initiated criminal proceedings against Salov for interfering with citizens’ voting rights. The applicant was charged under Article 127(2) of the Criminal Code of Ukraine, which criminalized interference with the exercise of voting rights by deception or other unlawful means. The prosecution alleged that the applicant had intentionally disseminated false information in order to influence the outcome of the presidential election.

In the course of the domestic proceedings, the Kuybyshevsky District Court of Donetsk initially ordered that the case be remitted for additional investigation, noting deficiencies in the prosecution’s evidence regarding intent and impact, and suggesting that the conduct might constitute an administrative or libel offence instead.

That ruling was later quashed by the Presidium of the Donetsk Regional Court, and the case was returned for further consideration. The applicant was subsequently convicted, sentenced to five years’ imprisonment (suspended for a two-year probationary period), fined 170 Ukrainian hryvnyas (UAH), and effectively disbarred from practising law as a consequence of the conviction. This conviction was upheld by the Donetsk Regional Court and subsequent appeals were dismissed.

After exhausting domestic remedies, the applicant lodged an application with the European Court of Human Rights, alleging, inter alia, a violation of his right to freedom of expression.

Decision Overview

The European Court of Human Rights (Second Section), with Judge J.-P. Costa as President, delivered a unanimous judgment. The main issue before the Court was whether the applicant’s criminal conviction violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.

Salov argued that his conviction violated Article 10 because he had merely passed on information obtained from a publication, without producing it himself, and because he could not reasonably have been expected to verify its truthfulness. He further contended that the criminal provision applied to him lacked sufficient foreseeability and that the severity of the sanctions imposed was disproportionate. He maintained that his conduct should, at most, have fallen under administrative law rather than criminal law. He further contended that the sanctions imposed were selective, as false information had also been disseminated about other presidential candidates without any resulting punishment.

The Government acknowledged that Salov’s conviction constituted an interference with his right to freedom of expression under Article 10. However, they argued that the interference was justified, that it was prescribed by law (namely Article 127 of the Criminal Code), and that it pursued the legitimate aim of protecting the voting rights of others. Relying on Ahmed and Others v. the United Kingdom, the Government emphasised the importance of protecting a democratic society from interference with the electoral process. They contended that Salov, acting on behalf of another presidential candidate, had knowingly disseminated false information concerning the alleged death of a rival candidate, Leonid D. Kuchma, thereby damaging the fairness of the electoral campaign. The Government maintained that the domestic courts had acted within their margin of appreciation and that the probationary sentence imposed was proportionate.

The Court applied its established three-part test: whether the interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society.

On the legality and legitimacy points, the Court rejected the applicant’s arguments, restating that the interference was sufficiently accessible and precise and therefore satisfied the requirement of legality. It noted that “the degree of precision depends to a considerable extent on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed.” [para. 108] It also reiterated that the protection of voters’ rights and the integrity of elections constituted a legitimate aim.

In assessing necessity, the Court emphasized the central role of political expression in a democratic society, particularly during election periods. It noted that the impugned statements related directly to matters of public interest and electoral debate. It also acknowledged the importance of protecting electoral integrity but stressed the heightened protection for political speech.

The Court noted the impugned statement was a false statement of fact, not a value judgment. However, it observed that the domestic courts had treated the applicant as if he were the originator of the false information, despite evidence that he had merely distributed a limited number of copies obtained from an external source. It found that the authorities failed to establish the applicant’s intent to deceive voters.

The Court further stressed that freedom of expression under Article 10 encompasses the dissemination of information received from others, even where its accuracy may be doubtful: “Article 10 of the Convention as such does not prohibit discussion or dissemination of information received even if it is strongly suspected that this information might not be truthful.” [para. 113]

In addition, the Court attached significant weight to the limited scale of the applicant’s conduct and to the severity of the penalties imposed, including the suspended prison sentence and its professional consequences (disbarment). It emphasized the limited impact of his actions, as he possessed only eight copies and spoke to a limited number of people. It held that the reasons advanced by the Government were neither relevant nor sufficient to justify such measures.

The Court concluded that the interference with the applicant’s freedom of expression was disproportionate and violated Article 10 of the Convention. It awarded the applicant EUR 227.55 for pecuniary damage and EUR 10,000 for non-pecuniary damage.