VITRENKO AND OTHERS v. UKRAINE
Inadmissible
Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva;Zoryana Bortnovska
The first applicant, Ms Nataliya Mykhaylivna Vitrenko, is a Ukrainian national who was born in 1951 and lives in Kyiv. The second, third, fourth and fifth applicant are, respectively, Mr Volodymyr Romanovich Marchenko, Ms Liudmila Yakivna Bezugla, Mr Mykhailo Yuriyovich Sydoruk and Mr Petro Mykhailovych Romanchuk, who were born on different dates between 1949 and 1957 and are Ukrainian nationals. They all live in Kyiv. The respondent Government are represented by Mrs Y. Zaytsev, from the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant is the leader of the Progressive Socialist Party of Ukraine. In 2002 the Nataliya Vitrenko Bloc political party nominated the applicants as candidates for the elections to the Verkhovna Rada of Ukraine (Parliament) that were to be held on 31 March 2002. On 7 March 2002 the Studiya 1+1 TV Channel (the “1+1 Channel”) had scheduled a political debate on television. Ms Tymoshenko, the leader of another political party (the Yuliya Tymoshenko Bloc) was due to appear for the debate with the first applicant, but failed to do so. As was later found in the court proceedings the 1+1 Channel cancelled this debate at the last minute by agreement with another TV channel, which planned to hold a debate between the first applicant and Ms Tymoshenko the following day. Therefore, Ms Tymoshenko was in fact not allowed on to the premises of the 1+1 Channel by the security. Apparently being unaware of these facts, the first applicant reacted during the live broadcast to the non-appearance of her counterpart by saying “She [Ms Tymoshenko] definitely knew that I would prove that she was a thief (воровка), that because of her, Pavel Lazarenko and other oligarchs robbed Ukraine, there will be no way out for Ukraine until order is restored. She staged a piece of theatre here and she deliberately did not come here and she will never wash out her guilt, therefore tomorrow [on another TV channel] I will prove who she is. ... It is all planned with American technology. We will not participate in this provocation”. Ms Tymoshenko lodged a complaint with the Central Electoral Commission that the first applicant had infringed electoral legislation and breached electoral rights. On 16 March 2002 the Central Electoral Commission gave an official warning to the first applicant finding that she had infringed electoral legislation (in particular, Article 51 § 1 of the Parliamentary Elections Act) and the principle of presumption of innocence enshrined in Article 62 of the Constitution of Ukraine. This warning was published in the Ukrainian national newspapers Golos Ukrainy and Uryadovyi kur'er. The first applicant lodged a complaint against this decision with the Supreme Court. On 26 March 2002 the Supreme Court, composed of one judge, found against the first applicant. It also ruled that the Central Electoral Commission had acted lawfully and that the first applicant had infringed electoral legislation by publicly disseminating untrue statements about Ms Tymoshenko. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 28 March 2002 a panel of three judges of the Supreme Court rejected the applicant's request for extraordinary review of this decision for lack of grounds. Following these events, Ms Tymoshenko instituted defamation proceedings in the Obolonsky District Court of Kyiv (the “Obolonsky Court”) against the first applicant, seeking to protect her honour, dignity and business reputation and claiming that statements disseminated by the first applicant were untrue. She also requested the court to be given an opportunity to rebut these statements. On 28 March 2002 the court held a hearing in which both parties participated. During the hearing the applicant challenged the videotape of her speech provided by the plaintiff. The court rejected this challenge by a separate ruling. The same day the first applicant tried to appeal against the separate ruling, but her appeal was rejected as that ruling was not subject to separate appeal. The first applicant's representative requested an adjournment of the hearing. On 12 April 2002, during the next hearing, the first applicant lodged a petition with the court in which she requested the court to obtain from the General Prosecutor's Office and the State Tax Administration copies of the decisions related to investigation of the criminal cases against Ms Tymoshenko and other leaders of the United Energy Systems of Ukraine Company and violation of the tax legislation by them “[t]o confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast of the 1+1 Channel during the TV debates on 7 March 2002”. This request was rejected on the ground that it was irrelevant to the proceedings in question. The first applicant also requested the court to adjourn the hearing. On 16 April 2002, during the next hearing, the first applicant lodged another, similar request with the court for documents from the General Prosecutor's Office and the State Tax Administration stating “[s]ince I used the word “thief” in its other generally accepted meaning, to confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast on the 1+1” Channel during the TV debates on 7 March 2002...”. It was rejected on the same ground. During the hearing the applicant's representative also requested the court to summon a representative of the Tax Administration who could explain about violations of the tax legislation by Ms Tymoshenko and her company. This request was also refused as irrelevant to the claim under examination. Following refusal of her requests the applicant sought withdrawal of the judge. By a separate ruling the same day the challenge was rejected as unfounded. During its next hearing, on 17 April 2002, the court decided to join the 1+1 Channel as co-defendant. That hearing was adjourned until 8 May 2002. On 8 May 2002 the court postponed the hearing due to the absence of the first applicant and her representatives. On 28 May 2002, having established that the first applicant and her representatives had failed to appear before the court for the second time without a plausible reason, the court decided to examine the case in their absence. 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 “she is a thief” and “she will never wash out her guilt” violated Article 62 of the Constitution of Ukraine (presumption of innocence). It also found untruthful the part of the first applicant's speech in which she had accused Ms Tymoshenko of deliberate failure to appear for the TV debate in question. The court ordered the 1+1 Channel to ensure that Ms Tymoshenko had 50 seconds of live broadcast to correct the statements disseminated about her by the first applicant. It also ruled that the first applicant had to pay for the 50-second broadcast which would be given to Ms Tymoshenko. The first applicant appealed against this decision. She stated, in particular, that the term “thief” had been used to criticise the “political amorality” of Ms Tymoshenko's leadership of United Energy Systems of Ukraine in 1995-1997, and thus had been a value judgment. She further complained that the first-instance court had refused to obtain the evidence from the law-enforcement bodies that she had requested, had unlawfully refused her request for withdrawal of the judge and had held a hearing in her absence. On 6 December 2002 the Kyiv Court of Appeal, having held a hearing in which all parties participated, upheld the decision of the Obolonsky Court. The court also considered that the refusal of the request for withdrawal of the judge and the decision to continue examination of the case in the applicant's absence were in compliance with the relevant law. On 13 June 2003 a panel of three judges of the Supreme Court upheld the decisions of the lower courts. On 31 March 2002 the Central Electoral Commission informed the applicants' party that they had received approximately 3.22 % of the ballots, while the electoral threshold was 4%. The applicants alleged that the election results had been falsified. On 10 April 2002 they lodged a complaint with the Central Electoral Commission against its resolution announcing the results of the elections. They further sought annulment of the election results and demanded that the Central Electoral Commission announce new elections. The Central Electoral Commission allegedly failed to react promptly to this complaint. On 12 April 2002 the applicants lodged a complaint against the Central Electoral Commission with the Supreme Court challenging this omission. On 15 April 2002 their claim was rejected on formal grounds as they had failed to comply with the procedural requirements stipulated by law. As the Central Electoral Commission had not accepted the results of the elections in the majority electoral constituencies nos. 18, 35 and 201, new elections were scheduled there for 14 July 2002. On 22 July 2002 the Central Electoral Commission adopted resolution no. 975, rejecting the first applicant's complaint against the resolution of the regional electoral commission of 15 July 2002 announcing that Mr S. had obtained a majority of the votes during the repeated elections of 14 July 2002. On 22 July 2002 the first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission challenging its decision, on the grounds that Mr S. and his representatives had allegedly bribed voters. On 30 July 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 8 December 2002 additional parliamentary elections were held in constituency no. 82. On 13 December 2002 the Central Electoral Commission adopted resolution no. 1030, rejecting the first applicant's complaint against the resolutions of the regional electoral commission of 9 December 2002 announcing that Mr Kh. had obtained a majority of the votes during the repeated elections of 8 December 2002 and rejecting the applicant's complaints about the election results. The first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission. On 23 December 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. Additional elections had been announced in constituency no. 206 and the first applicant was registered as a candidate on 24 April 2003. On 4 June 2003 the Deputy Prosecutor of the Chernigiv Region informed the constituency election commission about a violation of the electoral law in publishing campaign materials by the first applicant. On 5 June 2003 the constituency commission, having established that Mr M. - the authorised agent of the first applicant in the election campaign - had published campaign material in support of the first applicant in violation of the electoral law, decided to cancel the applicant's registration for repeated violation of the requirements of the electoral law (resolution no. 68). On 6 June 2003 the Desnyansky District Court of Chernigiv Region considered a complaint from Mr. P, another candidate from the same constituency, of violation of electoral legislation by the first applicant, namely several publications of campaign materials in the Dosvitni Ogni newspaper which were paid for with money not included in the official election expenses of the candidate. The court found against the applicant, confirming a violation of electoral legislation. It based its findings on the facts that the newspaper published this material at its own expense, that this newspaper was founded by the party of which the applicant was a leader, and that the editor-in-chief of the newspaper was Mr M. - the authorised agent of the first applicant in the election campaign. On 7 June 2003 the Central Electoral Commission cancelled resolution no. 68 of the constituency commission of 5 June 2003, having established that the constituency commission had misinterpreted relevant legislative provisions. On 7 June 2003 the constituency commission, by its resolution no. 72, cancelled the applicant's registration as a candidate on the basis of the court's decision of 6 June 2003 and in accordance with Article 49 § 3 (12) and (14) of the Parliamentary Elections Act. The same day the Central Electoral Commission upheld the resolution of the constituency commission by its resolution no. 50. The applicant appealed to the Supreme Court. On 7 June 2003 the Supreme Court, in the presence of the first applicant's representatives and members of the Central Electoral Commission, considered the applicant's appeal and found that the decisions of the relevant electoral commissions were well-founded and in compliance with law. Therefore, the Supreme Court upheld the decisions on the cancellation of the applicant's registration. Article 32 ... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information. Article 62 A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty. Article 77 ...The procedure for conducting elections of People's Deputies of Ukraine shall be established by law. Article 32. Financing of Elections of Deputies 1. Expenditures for the preparation and conduct of elections of deputies shall be incurred exclusively from the funds of the State Budget of Ukraine as well as the resources of election funds of parties (blocs) the candidates for deputy of which are registered in the multi-mandate constituency, and candidates for deputy registered in single-mandate constituencies. 2. In order to finance their election campaign, a party (bloc) of the candidates for deputy, which are registered in the multi-mandate constituency, as well as candidates for deputy registered in single-mandate constituencies, shall establish their election funds, which shall be formed in accordance with the procedure set forth by this Law. Article 49. Cancellation of the Decision on Registration of a Candidate (Candidates) for Deputy ... 3. A constituency election commission shall cancel its decision regarding the registration of a candidate for deputy in the following cases: ... 12) establishment by the court that the candidate for deputy used other sources of financing besides the resources of his/her election fund to budget the election campaign; ... 14) if a candidate for deputy, upon getting a warning from the constituency or the Central Election Commissions, mentioned in paragraph four of this Article, repeatedly violated the same requirements of this Law. ... 4. In the event of the violation of other provisions of this Law on the part of a candidate for deputy or a party (bloc), a corresponding election commission may issue a warning, which shall be made public in the state-owned and municipal media or in a different way... Article 51. Forms and Means of Election Campaign Campaigning may be performed in any forms and by any means not conflicting with the Constitution of Ukraine and laws of Ukraine. Citizens of Ukraine shall have the right to discuss political programmes of parties (blocs), political, business, and personal features of candidates for deputies freely and thoroughly, to campaign in support or against parties (blocs), candidates for deputies... Article 7. Protection of honour, dignity and reputation A citizen or an organisation shall be entitled to demand in a court of law that a statement be refuted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the statement proves that it is truthful. ... Statements disseminated about a citizen or an organisation that do not conform to the truth and cause damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation. The relevant extracts of the resolution read as follows: “The Committee of Ministers ... Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles: 1. In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication. 2. In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute: ... ii. an attack upon his dignity, honour or reputation ...” The relevant extracts of the recommendation read as follows: “1. Scope of the right of reply Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.”