FIFTH SECTION

DECISION

Application no. 11899/17 Sergiy Mykolayovych RYBIY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 September 2022 as a Committee composed of:

Stéphanie Mourou-Vikström , President,

Lado Chanturia ,

Arnfinn BÃ¥rdsen , judges,

and Martina Keller, Deputy Section Registrar ,

Having regard to:

the application (no. 11899/17) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 February 2017 by a Ukrainian national, Mr Sergiy Mykolayovych Rybiy, who was born in 1989 and lives in Dnipro (“the applicant”) who was represented by Mr S.P. Bulkach, a lawyer practising in Dnipro;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case mainly concerns the applicant’s complaints under Article 10 of the Convention that he was sentenced to fines for refusing to cease the recording of court hearings in cases which did not concern him personally and under Article 6 §§ 2 and 3 of the Convention that the proceedings which led to the imposition of those fines were unfair (notably in that he had not been able to examine audio recordings of the hearings, had no access to free legal aid and had not been able to examine certain witnesses).

2 . The applicant attempted to video-record, with a portable camera, two public hearings in cases examined under the Code of Criminal Procedure: on 11 August 2016 in a criminal case and on 15 August 2016 in a case concerning the conversion of a suspended imprisonment into a real prison term.

3 . The applicant was not a party to those proceedings. According to his submissions, on the first occasion he undertook the recording because he believed that the presiding judge was unlawfully holding the hearing in his chambers instead of a hearing room. On the second occasion the applicant picked a case announced on the court’s docket at random to emphasize that citizens should be able to record public court hearings.

4 . The applicant claimed that in August 2016 he had created an NGO dedicated to advancing transparency in the judiciary and that he had taken the above-mentioned actions on its behalf.

5 . The presiding judges solicited the parties’ opinions concerning the possibility of video-recording the proceedings and, in the first case, the defendant and his lawyer and, in the second case, the probation service inspector and the prosecutor objected, invoking Article 307 of the Civil Code (§ 1 of that Article provides that an individual can be video-recorded only with his or her consent, consent being presumed where recording is done openly in the street or during a meeting or other public event and § 3 provides that recording without consent can be conducted only in cases provided by law). The presiding judges prohibited the recording.

6 . The applicant refused to comply with the presiding judges’ orders and reports were drawn up charging the applicant with contempt of court, under Article 185-3 of the Code of Administrative Offences (which provides for a fine in case, notably, of failure to comply with the instructions of the presiding judge).

7. The charges against the applicant were examined by the Babushkinsky District Court.

8 . Before that court the applicant argued notably that the orders to cease recording were contrary to section 11 of the Judicial Organisation and Status of Judges Act 2010. At the relevant time section 11 § 3 of the Act provided that parties to the public court proceedings and other persons present in court could conduct photo, video and audio recording of the proceedings using portable devices “without need for separate permission from the court”, but taking into account limitations provided by law and provided that recordings did not interfere with the normal conduct of the proceedings or the exercise of the parties’ rights.

9 . The applicant also invoked Article 27 § 6 of the Code of Criminal Procedure (which provides that every person present at a public court hearing can make written notes and use portable audio-recording devices, but that photo or video-recording or audio-recording using stationary equipment requires a decision of the court taken after consulting the parties).

10 . The District Court convicted the applicant as charged and, in each case, imposed fines of 1,700 Ukrainian hryvnias (UAH, about 60 euros at the time), the maximum punishment for contempt of court. The court also ordered the applicant to pay costs of UAH 275 per case.

11 . The applicant appealed, arguing in particular that there was no admissible evidence of his guilt and stating that his conviction was contrary to Article 10 of the Convention, as interpreted in Pinto Coelho v. Portugal (no. 2) (no. 48718/11, §§ 31 and 32, 22 March 2016).

12. The proceedings ended in decisions of the Dnipropetrovsk Regional Court of Appeal of 18 October (events of 15 August) and 13 December 2016 (events of 11 August) rejecting the appeals.

13 . The circumstances of the third case in which the applicant was fined for refusing to cease recording of a hearing were similar, the proceedings ended in the decision of the Court of Appeal of 13 December 2016.

THE COURT’S ASSESSMENT

14 . The Court notes at the outset that the applicant is not a journalist, media actor or researcher. The applicant’s assertion that he represented an NGO working in the field of court transparency is unsubstantiated and, in any event, he failed to explain the relevance of his recording to the NGO’s or his own publication, research or other expression-related activities. Indeed, there is no evidence that the NGO in question or himself have at any point been engaged in such activities or planned to.

15. Therefore, the case should be distinguished from such cases as Pinto Coelho v. Portugal (no. 2) (no. 48718/11, §§ 31 and 32, 22 March 2016) and Mándli and Others v. Hungary (no. 63164/16, § 45, 26 May 2020) where journalists were penalised for conducting or disseminating recordings as part of their reporting activities.

16. At the same time, the applicant could be said to have attempted, through his conduct, to send the message that the public should be able to video-record court hearings or that they should be held in hearing rooms rather than in judges’ chambers (see paragraph 3 above).

17. The Court has considered that Article 10 is applicable to forms of conduct (see, for example, Tatár and Fáber v. Hungary , nos. 26005/08 and 26160/08, § 30, 12 June 2012; Murat Vural v. Turkey , no. 9540/07, §§ 43-56, 21 October 2014; Shvydka v. Ukraine , no. 17888/12, §§ 37-38, 30 October 2014; and Ibrahimov and Mammadov v. Azerbaijan , nos. 63571/16 and 5 others, §§ 166-167, 13 February 2020).

18. Accordingly, the Court will proceed on the assumption that there was an interference with the applicant’s right to freedom of expression.

19. As to whether the interference was lawful, the Court observes that it had a basis in domestic law, the Code of Administrative Offences contempt-of-court provision (see paragraph 6 above). The applicant was held in contempt for failure to obey orders from the presiding judges which in turn had been based on the provision of the Civil Code prohibiting video ‑ recording of individuals without their consent. This appears to have also been in line with the provisions of the Code of Criminal Procedure which governed the proceedings the applicant wished to record (see paragraphs 5 and 9 above). The applicant did not argue that those provisions did not meet the requisite quality of law requirements.

20. The Court notes the applicant’s argument that, in view of the provisions of the Judicial Organisation and Status of Judges Act (see paragraph 8 above), the prohibition to record was unlawful. However, while he raised this argument before the first-instance court, he failed to do so before the domestic Court of Appeal. It would be contrary to the principle of subsidiarity for the Court to rely on this argument to question the domestic courts’ interpretation of the domestic law in the circumstances where the applicant himself neglected to duly raise it.

21. In any event, the applicant’s argument does not appear particularly convincing given that the relevant section of the Judicial Organisation and Status of Judges Act did envisage that recordings had to be conducted subject to limitations provided by law and on the condition that they do not interfere with the normal conduct of the proceedings and the exercise of the parties’ rights (see paragraph 8 above).

22. The Court therefore concludes that the restriction was “prescribed by law”. It also considers that it pursued the legitimate aims of maintaining the authority and impartiality of the judiciary and of protecting the rights of others (see Pinto Coelho , cited above, § 34).

23. As to “necessity in a democratic society”, the Court observes at the outset that the hearings the applicant wished to video-record were held in public and therefore prohibition on video-recording of their progress required justification. The holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained (see Sutter v. Switzerland , 22 February 1984, § 26, Series A no. 74, and Malhous v. the Czech Republic [GC], no. 33071/96, § 55, 12 July 2001).

24. However, the Court observes again that the applicant was not a journalist, media actor or researcher and did not demonstrate that recording of the hearings in question was a preliminary step in exercise of any of those activities. The point of his actions was rather to make an abstract point that the public should be able to record court hearings or that they should be held in hearing rooms rather than in chambers (see paragraphs 3, 4 and 14 above).

25. The applicant’s abstract interest in making the recordings as a point of principle carries only a limited weight given that it was opposed to the specifically expressed interest of individuals participating in the proceedings of not being filmed (see paragraphs 3 and 5 above). Moreover, the applicant was not prohibited from conducting audio recordings of the proceedings. It was only his insistence on video recording in particular to which the parties to the proceedings objected and which the courts prohibited.

26. Finally, it is relevant that the domestic courts, before issuing a prohibition, submitted the matter to debate and offered the applicant an opportunity to cease recordings before imposing the sanction on him. The sanction itself, which was not criminal in nature (see paragraph 29 below), was not disproportionate to the legitimate aim pursued.

27. The Court concludes that the applicant has failed to make an arguable claim that his right to freedom of expression has been breached and this complaint is, therefore, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

28. As to the complaints under Article 6 §§ 2 and 3 of the Convention, the case-law principles regarding the applicability of Article 6 in its criminal limb to contempt-of-court proceedings have been recently summarised in Gestur Jónsson and Ragnar Halldór Hall v. Iceland ([GC], nos. 68273/14 and 68271/14, §§ 75-83, 22 December 2020).

29 . Applying those principles in Malynovska v. Ukraine ((dec.), no. 59855/13 [Committee], 9 December 2021), the Court found that Article 6 did not apply in its “criminal” aspect to contempt-of-court proceedings in which a fine non-convertible to imprisonment was imposed. The Court sees no reason to reach a different conclusion in the present case, where the fines were ten times lower than the one imposed in Malynovska .

30. The Court therefore finds that this part of the application is incompatible ratione materiae with the Convention and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

31. The applicant’s complaint under Article 6 § 1 (that the court that convicted him had lacked objective impartiality since there had been no prosecuting party in the proceedings), presented in the application form of 15 August 2017 in respect of proceedings that ended on 13 December 2016 (see paragraph 13 above), was lodged outside of the six-month period and must be declared inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention.

32. The applicant also complained under Article 6 § 1 that the judge who tried him in connection with the refusal to record on 11 August 2016 lacked impartiality. However, he failed to raise this argument on appeal and this complaint must accordingly be rejected as inadmissible for failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

33. The applicant’s further complaints being inadmissible, the applicant has no “arguable claim” of a breach of any provision of the Convention for the purposes of Article 13 of the Convention (see Shari and Others v. Italy (dec.), no. 57/03 , 5 July 2005) and his complaint under that provision is accordingly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 October 2022.

Martina Keller Stéphanie Mourou-Vikström Deputy Registrar President