CASE OF SHAPOVALOV v. UKRAINE
Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger
5. The applicant was born in 1981 and lives in Kherson, Ukraine. 6. The applicant is a journalist and human rights activist. Since April 2003 he has been a member of the Kherson Regional Branch of the Ukrainian NGO “The Committee of Voters of Ukraine” (hereinafter “CVU”) (Херсонська обласна організація всеукраїнської громадської організації «Комітет виборців України») and a reporter for the regional newspaper “Vilnyy vybir” («Вільний вибір»), which was founded by the Kherson Regional Branch of the CVU. Between 26 October 2004 and 10 January 2005 he was also a reporter for the CVU’s newspaper “Tochka zoru” («Точка зору»). The CVU’s main activities include, inter alia, election monitoring and raising voters’ legal awareness during election campaigns. 7. The Ukrainian presidential elections in 2004 were held on two rounds, on 31 October and 21 November 2004. 8. After the end of the second-round voting of 21 November 2004 mass protests were carried out. The elections were claimed to be marked by massive corruption, voter intimidation and electoral fraud. The protests succeeded in that the results of the original run-off were annulled, and a revote was organised on 26 December 2004. 9. The protests and other political events that took place in Ukraine from late November 2004 to January 2005 were called the Orange Revolution. 10. During the Ukrainian presidential elections in 2004 the applicant covered meetings and decisions of Territorial Election Commission no. 186 (hereinafter “the TEC”) (територіальна виборча комісія). 11. According to the applicant, at 2 p.m. on 31 October 2004, the day of first-round voting in the presidential elections, he requested R., the TEC’s secretary, and B., the TEC’s Head, to provide him with a copy of the TEC’s decision no. P-12-4, adopted earlier on the same day, concerning the possibility for district electoral commissions to make changes to the lists of voters without the approval of the TEC. According to the applicant, such a decision was unlawful. Later, the applicant asked for the voting results for each polling station and for copies of the minutes of the TEC’s meetings of 31 October 2004. 12. As the applicant was not provided with the information requested, on the same day at 5 p.m. he submitted a written request to the Head of the TEC. In reply, he was informed that decision no. P-12-4 had been posted on the information stand and that by 4 p.m. 39.1% of voters had voted. According to the applicant, his request for the TEC meeting minutes was ignored. However, according to explanations given by R. to a prosecutor (see paragraph 20), the minutes of the TEC meetings of 31 October and 1 November 2004 had also been displayed on the information stand. 13. That same evening, at around 8 p.m., the applicant was prevented from entering the TEC building to attend its meeting. According to the applicant, he entered the TEC premises half an hour later. It is unclear whether a TEC meeting was actually held at that time and, if so, whether the applicant was finally able to attend. 14. On 5 November 2004 the applicant complained to the Head of the TEC, inter alia, about not letting him into the TEC’s premises, and requested copies of the TEC meeting minutes of 31 October and 1 November 2004. 15. On 10 November 2004 the TEC adopted a decision to disregard the applicant’s complaint. 16. On 21 November 2004, the day of second-round voting, the applicant requested to be provided with the TEC’s decision no. 1-116 of 17 November 2004 allowing the police to be present in polling stations. The applicant stated that he had been shown this decision by the police at one of the polling stations. According to the applicant, his request was ignored. No copy of such a request has been submitted by the applicant. 17. That same evening the TEC decided not to allow the applicant to attend its meetings as he interfered with its work. According to the applicant, that decision was adopted after he had asked the Head of the TEC what the legal basis for one of her decisions adopted at the meeting was. The applicant later tried to enter the TEC premises but was stopped by Z., a TEC member. This was witnessed by Bi., a journalist. 18. The applicant later requested a copy of the minutes of the TEC meeting. In reply he was told that the minutes were posted on the TEC’s information stand. 19. On 15 May 2006 the Komsomolskyy District Prosecutor’s Office rejected the applicant’s complaint to institute criminal proceedings against TEC members for obstructing the lawful professional activities of journalists (Article 171 of the Criminal Code of Ukraine). 20. The prosecutor questioned R., the secretary of the TEC, who explained that all the material requested by the applicant on 31 October 2004 had been posted on the information stand on the TEC’s premises on the same day or the next day. It was also noted that the Presidential Elections Act did not provide for the possibility of receiving information about detailed voting results for each polling station. R. also submitted that the applicant “had shouted out loud remarks about ‘wrong decisions’ of the TEC and had wandered round the TEC’s premises, hindering its work”. 21. The Head of the TEC, B., explained that on 21 November 2004 the applicant “had behaved inappropriately and hindered the TEC in its work”. 22. K., another TEC member, submitted that the applicant “had behaved inappropriately and physically hindered the TEC’s work”. This was also confirmed by Z., another TEC member. K. also stated that the applicant had threatened her and R. with physical reprisals and this fact had been documented. 23. Bi., a journalist, testified that she had seen the applicant being prevented from entering the TEC’s premises on 22 November 2004 between 1 and 2 a.m. 24. Ko., an election observer, submitted that the applicant was requested to leave the TEC meeting after he had asked what the documents on and under the table and in the drawers in the meeting room were. It was decided to exclude him from the meeting for “making remarks from the floor”. 25. On 20 December 2004 the applicant instituted proceedings in the Suvorovskiy District Court of Kherson, challenging the TEC’s refusals to give him copies of its decisions and to allow him to attend its meetings. He also complained about the failure to provide him with accurate information in a timely manner. In particular, the applicant complained that on 31 October 2004 he had not been provided with a copy of decision no. P124, with written information “about voting results for each polling station in the constituency”, or with the minutes of the TEC’s meetings of 31 October 2004, and that he had been prevented from entering the premises of the TEC on 31 October 2004. Further, on 21 November 2004 he was not provided with the TEC’s decision no. 1-116 of 17 November 2004, was not allowed to attend the TEC’s meeting of 21 November 2004 and was not provided with the minutes of that meeting. 26. The applicant lodged his complaint under Chapter 31-A of the Code of Civil Procedure of Ukraine (“the CCP”), which sets out the rules for lodging complaints against decisions, acts or omissions of State bodies. 27. On 3 March 2005 the court held that the applicant’s complaint should have been lodged under Chapter 30-B of the CCP and under the Presidential Elections Act 1999 (“the Act”). The court further considered that because (i) the elections had already ended, (ii) the applicant had lodged his complaint about the events of 30 October – 2 December 2004 only on 20 December 2004, and (iii) the applicant had sought the consideration of his complaint under Chapter 31-A, the proceedings should be terminated. 28. On 17 May 2005 the Kherson Regional Court of Appeal upheld the above-mentioned decision. It stated in particular that: “... the subject of the complaint in the present case is limited to decisions and actions of the TEC and officials during the elections between 30 October and 2 December 2004. The examination of election-related complaints is regulated by the provisions of the Presidential Elections Act, according to which a journalist cannot lodge such complaints. By the date of the court decision the elections were already over. As it was not possible to examine the applicant’s complaint under Chapter 31-A of the Civil Procedure Code, the first-instance court lawfully terminated the proceedings in the case”. 29. According to the applicant, he received a copy of this decision on 30 May 2005. 30. On 25 September 2006 the Higher Administrative Court of Ukraine rejected the applicant’s appeal, as neither the Act nor Chapter 30-B of the CCP provided for a cassation appeal against a court decision concerning electoral matters. 31. According to the applicant, he received threats from unknown persons. He requested that the police protect him. On 10 January, 15 April and 16 September 2005 the Suvorovskyy District Prosecutor’s Office refused to institute criminal proceedings following the applicant’s allegations that he had been persecuted. 32. The applicant further complained of alleged violations of his rights to various state authorities, including the Ukrainian Parliamentary Commissioner for Human Rights. He subsequently instituted court proceedings against the Commissioner and several members of her Secretariat for failure to answer his complaints, but was unsuccessful in those proceedings. 33. According to Chapter 31-A of the Code of Civil Procedure of Ukraine, it is possible to challenge the decisions, actions or omissions of any State agency or local self-government body in court, as well as those of any enterprise, establishment, association of citizens or other legal entity, or their officials or administrators. 34. According to Chapter 30-B of the Code, complaints against decisions, acts or omissions of a territorial election commission are examined by the Supreme Court of the Autonomous Republic of Crimea, by the relevant regional court, or by the Kyiv and Sevastopol City Courts, as appropriate. Such complaints may be lodged by the candidates, their proxies, representatives of political parties or blocs, or by at least twenty voters. 35. Section 12 of the Act establishes that the subjects of elections are: (i) the voters; (ii) the election commissions formed according to the Act and the Central Election Commission Act; (iii) candidates for the post of the President of Ukraine registered in accordance with the procedure established by the Act; (iv) the parties or blocs who have nominated candidates for the post of President of Ukraine; and (v) the authorised representatives, proxies and official observers of any of the parties or blocs involved in the election process, or candidates for the post of President of Ukraine. 36. Section 104 of the Act provides that a subject of the election process shall have the right to file a complaint against the decisions, actions or inaction of an election commission or an individual member of an election commission. Complaints against the decisions, actions or inaction of territorial election commissions or their members must be filed with the Central Election Commission or with a court of appeal situated in the area covered by the relevant territorial election commission. 37. The relevant Articles of the Information Act provide as follows: Participants in informational relationship are citizens, legal persons or the state who obtain the rights and obligations stipulated by law in process of information activity. Principal participants in this relationship are authors, consumers, promoters, keepers (guardians) of information Participants of informational relationship have the right to receive (produce, obtain), use, disseminate and store information in any form with the use of any means, except for the cases, stipulated by the law. Every participant of informational relationship to secure his rights, freedoms and legal interests has the right to obtain information on: activity of governmental authorities; activity of people’s deputies; activity of local and regional governmental authorities and local administration...”