Published on 20 September 2021

FIFTH SECTION

Application no. 22737/16 Sergiy Gennadiyovych ARBUZOV against Ukraine lodged on 14 April 2016 communicated on 30 August 2021

STATEMENT OF FACTS

The applicant, Mr Sergiy Gennadiyovych Arbuzov, is a Ukrainian national, who was born in 1976 and lives in Romashkovo, Russian Federation. He is represented before the Court by Mr Y.A. Glotov, a lawyer practising in Kyiv.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 27 February 2014, after President Yanukovych’s rule came to an end as a result of protests referred to as “EuroMaidan” (for more details concerning the relevant events see, in particular, Shmorgunov and Others v Ukraine , nos. 15367/14 and 13 others, §§ 9-17, 21 January 2021), the Parliament dismissed the applicant from the post of the First Deputy Prime ‑ Minister.

On 2 May 2014 major clashes between the proponents and the opponents of the new Government took place in Odesa, in the course of which over forty persons were killed and over 200 persons were injured (for more details concerning the relevant events see Grubnyk v. Ukraine , no. 58444/15, § 7, 17 September 2020) .

Starting from 3 May 014, numerous media resources published news items indicating that, according to the State Security Service of Ukraine ( Служба Безпеки України – “SBU”), the applicant and K. – one other member of the former Government – were implicated in financing the protest movement in Odesa. [1]

No charges in this respect were formally brought against either the applicant or K.

On 27 May 2014 K. instituted defamation proceedings alleging that on 3 May 2014 defamatory information concerning him had been disseminated during an SBU briefing by a Ms K.K. of the SBU press-centre, as well as via a publication on the SBU’s official website ( http://sbu.gov.ua ). The impugned internet publication contained, in particular, the following text:

“Disturbances, which took place on 2 May in Odesa and led to clashes and numerous human casualties, were facilitated externally and financed by S. Arbuzov and [K. - full name given ] – formerly high-ranking officials of the Yanukovych’s cabinet, who are hiding out in a neighbouring country.

... funded by the former high-ranking officials, the provocation ... was aimed at disruption of stability in the South of Ukraine and was intended by its organisers to trigger massive destabilisation in all other southern regions of our country. ...”

On 6 August 2014 the Shevchenkivskyi District Court in Kyiv allowed K.’s claim in part, having found that the SBU had published the disputed article on its official website and that the content of that publication, as well as oral statements of a similar content made by the SBU’s press-centre during the briefing held on the same day defamed the plaintiff. The court further ordered the SBU to publish a refutation of the disputed statements as regards K. It appears from the text of the court’s judgment, that in the course of the proceedings, the SBU had acknowledged having disseminated the disputed content both, on its website and during the briefing. The defendant State agency argued, however, that that content could not be refuted, as it had been “a value judgment”. K.K. (the SBU press-centre’s agent implicated by K. in making oral statements during the briefing) had submitted, for her part, that she could not be held personally responsible for the content of the statements disseminated by her on behalf of her employer.

On 3 November 2014 and 15 April 2015 the SBU’s appeals against this judgment were dismissed by the Kyiv City Court of Appeal and the Higher Specialised Court in Civil and Criminal Matters respectively.

On 16 June 2014 the applicant, similarly to K., lodged a defamation claim complaining about the content of the aforementioned internet publication and seeking for it to be refuted by the SBU. He argued that the content of the publication constituted a gratuitous attack on his reputation as it accused him of an exceptionally grave criminal offence. He also listed some twenty other publications, which re-published the accusation against him referring to the SBU as a source.

On 30 July 2014 the Shevchenkivskyi District Court in Kyiv dismissed the applicant’s defamation complaint, having decided that he had not sufficiently demonstrated that the SBU had posted the disputed article on its website.

The applicant lodged an appeal.

On 12 November 2014 the applicant obtained an opinion by U., an information technology expert, attesting that the SBU was the owner of the website, which had published the disputed content. U. also noted that only a person equipped with special access credentials could have fed the content into the webpage and indicated that such credentials were normally available only to the parties affiliated with the website administration. U.’s report included a screenshot of the webpage, which contained the disputed publication, from which it appeared that the publication had been made on 3 May 2014 and the screenshot itself had been made on 22 October 2014. U.’s opinion was added to the applicant’s defamation case file.

On 1 December 2014 the Kyiv City Court of Appeal allowed the applicant’s appeal in part. It found, in particular, that, in the circumstances of the applicant’s case, a screenshot from the SBU webpage containing the disputed publication was sufficient to demonstrate that the disputed information had been disseminated. It further found that the information at issue was defamatory and ordered the SBU to publish a refutation.

On 8 July 2015 the Higher Specialised Court in Civil and Criminal Matters quashed the Court of Appeal’s ruling, having allowed the SBU’s appeal on points of law, and remitted the case for a fresh appellate review. It noted, in particular, that the Court of Appeal had not delved into a question whether it was necessary to solicit an expert’s opinion or order a formal expert assessment with a view to determining whether the disputed statements had indeed been published at the webpage indicated by the applicant and whether the SBU had indeed been their publisher.

In the course of the second round of the appellate proceedings, the applicant supplemented his pleadings by filing the court decision in K.’s case, which had become final by that time. He argued that the fact of dissemination of the disputed statements by the defendant State agency had already been established in K.’s proceedings.

It appears from the available material that in the course of this round of proceedings the SBU contended that it was not capable of either confirming or refuting the applicant’s allegations that they had published the disputed article on their website. At the material time there had been no such article on that site and they kept no archives of past publications.

On 13 November 2015 the Court of Appeal dismissed the applicant’s appeal and upheld the District Court’s judgment of 30 July 2014, having found that he had not proved that the SBU had published the disputed article on its website. The Court of Appeal further noted that the court judgments taken in K.’s proceedings had no prejudicial effect for the applicant’s case, as they established the facts in respect of a different plaintiff. It also noted that the applicant had declined a procedural opportunity to request the court to appoint an expert in order to examine whether the SBU had published the disputed statements.

The applicant appealed on points of law. He argued, in particular, that the Court of Appeal had arbitrarily ignored the factual findings in K.’s defamation proceedings and disregarded U.’s expert opinion, from which it had been apparent that the SBU had indeed published the disputed content on its webpage. He also argued that his request to summon U. for questioning as an expert had been arbitrarily rejected.

On 16 December 2015 the Higher Specialised Court dismissed the applicant’s appeal and upheld the District Court’s judgment of 30 July 2014.

On 11 February 2016 the Supreme Court rejected the applicant’s request to open the extraordinary review proceedings.

Article 82, part 4 of the Code of Civil Procedure (2004) dispenses a party to a civil suit from duty to prove facts, which had already been established in a final ruling taken in a different civil case on condition that that case concerned “the same parties or the party, in respect of which those facts had been established, unless the law provides otherwise.”

COMPLAINTS

The applicant complains that the statements published by the SBU on its website were defamatory and that the domestic courts failed to protect his honour and reputation. He refers to Articles 6 and 13 in respect of the above complaints.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of his defamation complaint, in accordance with Article 6 § 1 of the Convention? In particular, was his right to a reasoned decision respected? Were the domestic courts’ findings based on a reasonable assessment of the facts (see, for example, Khamidov v. Russia , no. 72118/01, §§ 170-175, 15 November 2007)?

2. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 8, as required by Article 13 of the Convention?

[1] See, for example: Clashes in Odesa were funded by Arbuzov and [O.K.] – SBU ( Заворушення в Одесі фінансували Арбузов і [O.K.] ) https://www.slovoidilo.ua/news/2363/2014-05-03/besporyadki-v-odesse-finansirovali-arbuzov-i-klimenko--sbu.html ; SBU: disturbances in Odesa were funded by Arbuzov and [O.K.] (СБУ: провокації в Одесі фінансували Арбузов та [O.K.]) https://espreso.tv/news/2014/05/03/sbu_provokaciyi_v_odesi_finansuvaly_arbuzov_i_klymenko ; Ukraine says Odessa unrest planned and financed from abroad

https://www.reuters.com/article/us-ukraine-crisis-interference/ukraine-says-odessa-unrest-planned-and-financed-from-abroad-idUSBREA4203P20140503