Published on 16 August 2021

FIFTH SECTION

Application no. 28523/19 Nina Mykolayivna POTARSKA and Others against Ukraine lodged on 21 May 2019 c ommunicated on 27 July 2021

SUBJECT MATTER OF THE CASE

The application concerns alleged breaches of journalists ’ rights to respect for private life, correspondence and freedom of expression on account of the publication of their personal data and accusations of criminal conduct on a website, which was registered abroad by private parties, but which was allegedly affiliated with the Government. The applicants rely on Articles 8, 10 and 13 of the Convention.

According to the applicants, in 2015 they requested the authorities of the self-proclaimed Donetsk People ’ s Republic (“DNR”) to give them journalistic accreditation to visit the DNR. Having obtained the authorities ’ consent, they travelled to the DNR and, upon return to Ukraine, made various publications.

In May 2016 a website entitled “Peacemaker” ( Миротворець ); presenting itself as a project of a non-governmental research centre [1] p ublished a post entitled “List of journalists accredited by the terroristic organisation DNR”. [2] The post referred to a list of several thousand journalists including two of the applicants and indicated those applicants ’ mobile telephone numbers, emails, employment information and dates of stay in the DNR. In December 2016 the website also published an article implicating all three applicants in criminal collaboration with the Donbass separatists and including copies of their passports, DNR-issued journalistic accreditation cards, and excerpts from the first applicant ’ s email correspondence. [3]

In response to the applicants ’ complaints, in 2016 criminal proceedings were instituted concerning allegedly unlawful interference with their journalistic activity, which are currently ongoing. It appears that the identities of the persons responsible for the publication of the disputed material and those of the website owners have not yet been established and this material currently remains accessible at the website.

The applicants allege that the website is, in fact, affiliated with several named Governmental officials and with the Ukrainian law-enforcement authorities, who patently refuse to conduct an effective investigation with a view to establishing the identities of the persons responsible for the publication. They further allege that in these circumstances they have no possibility to file civil proceedings or obtain any other relief for their complaints.

QUESTIONS TO THE PARTIES

1. Has there been a breach of the applicants ’ rights guaranteed by Article 8 and/or Article 10 of the Convention in the present case? In particular:

(a) In the light of the applicants ’ allegations that the “ Myrotvorets ” website is closely affiliated with the Government, has there been an interference by the State with the applicants ’ Convention rights? If so, has that interference been in accordance with the law and necessary in a democratic society (compare to Khadija Ismayilova v. Azerbaijan , nos. 65286/13 and 57270/14 , §§ 108-114, 10 January 2019)?

(b) Alternatively, did the situation complained of give rise to State positive obligations under either of the aforementioned Convention provisions? If so, have these obligations been complied with (compare Özgür Gündem v. Turkey , no. 23144/93, §§ 41-46, ECHR 2000 ‑ III; K.U. v. Finland , no. 2872/02, §§ 44-50, ECHR 2008; and Khadija Ismayilova , cited above, §§ 115-119, 131-32, and 158-66)? In particular:

(i) Does the domestic legal and administrative framework contain sufficient instruments and procedural safeguards enabling the applicants to assert their Convention rights in the context of the disputed publication of their personal data and an allegedly defamatory material on the “ Myrotvorets ” website?

The parties are invited to comment , in partic u lar, on the availability of preventive (such as injunctions) and retrospective (such as compensatory) remedies.

(ii) Has the domestic legal and administrative framework been functioning properly in the applicants ’ case?

In particular, is a criminal remedy, to which the applicants have resorted, an indispens a ble and appropriate remedy in the present case?

If so, have the law-enforcement authorities taken all the steps that could be reasonably expected from them to ensure effective protection of the applicants ’ Convention rights?

2. In case it is considered that the applicants had an arguable claim of a violation of Articles 8 and/or 10 of the Convention imputable to the State authorities, did the applicants have at their disposal an effective remedy for their complaints under these provisions, as required by Article 13 of the Convention?

APPENDIX

No.

Applicant ’ s Name

Year of birth

Nationality

Place of residence

1.Nina Mykolayivna POTARSKA

1983Ukrainian

Kyiv

2.Vitaliy Illich ATANASOV

1980Ukrainian

Kyiv

3.Roman Volodymyrovych KLYMENKO

1976Ukrainian

Kyiv

[1] See https:// myrotvorets.center/about/

[2] See https://myrotvorets.center/579804-spisok-zhurnalistov-akkreditovannyx-terroristicheskoj-organizaciej-dnr/

[3] See https://myrotvorets.center/901373-u-zhurnashlyux-dengi-ne-paxnut-mozhno-i-rodinu-prodat/