Published on 9 August 2021

FIFTH SECTION

Application no. 70105/13 Andriy Vitaliyovych KLIMOV against Ukraine and 2 other applications (see list appended) c ommunicated on 15 July 2021

SUBJECT MATTER OF THE CASE

The applications mainly concern the applicants ’ right to freedom of expression.

On 2 March 2012 the applicant published an article criticizing the activities of the Audit Chamber, a governmental institution. The applicant noted in the article that the information contained in it reflected his own subjective opinion. In October 2012 the Audit Chamber instituted judicial proceedings against the applicant seeking refutation of the information contained in the article as being false and harmful to its reputation.

By its final decision of 15 April 2013, the Higher Specialised Court found against the applicant. It established that the information in the article was a statement of facts and not a value judgment, as the applicant had claimed before the courts. The court also found that this information was false and ordered the applicant to refute it.

The applicant complains under Article 10 of the Convention that his right to freedom of expression was violated.

Mr Vasylenko and Ms Vasylenko are journalists of the newspaper “ Subbota Plus”. The Company “ Mediakompaniya Slovo ” is the founder of said newspaper.

On 21 March 2013 Mr Vasylenko published in Subbota Plus an article criticizing the activities of company V., a municipal water service provider. The article contained both statements of facts and value judgments.

The company V. instituted judicial proceedings requesting the courts to find that the information contained in certain part of the article was false.

By its final decision of 9 September 2013 the Higher Specialized Court found against the applicants.

In their decisions the courts prohibited the applicants to disseminate in any possible manner (“in printed media, on the TV, radio, or Internet, in interviews, or discussions”) the information which was found by the courts to be false.

The applicants complain under Article 10 of the Convention that the courts violated their right to freedom of expression and that their decisions were not based on law and necessary in a democratic society. In particular, the Ukrainian legislation did not empower courts to prohibit dissemination of information “in any possible manner”. In addition, the parts declared by the courts to be false contained both statements of facts and value judgments.

The applicant published a newspaper article alleging that a certain Mr M., a former high-ranking governmental official, had built a cottage on the land which he had illegally acquired, and which had previously belonged to a state-owned sanatorium for children suffering from tuberculosis. The article contained statements of facts (information which the applicant collected herself, including from official sources) and value judgments.

Mr M. instituted judicial proceedings against the applicant and the newspaper requesting the court to declare that the information contained in the article was false. Mr M. also sought to oblige the defendants to publish a refutation of that information.

On 15 April 2013 Mr B., the applicant ’ s lawyer, requested the first instance court to postpone the hearing scheduled for 19 April 2013 because on 27 March 2013 he had broken a leg. The court refused to postpone the hearing which prevented the lawyer from submitting to the court various evidence proving the truthfulness of the statements of facts contained in her articles.

On 19 April 2013, in the absence of the applicant and her lawyer, the first instance court found against the applicant and obliged the defendants to publish the operative part of its decisions in the newspaper.

The applicant appealed and submitted to the appeal court the evidence which her lawyer had not been able to present before the first instance court.

On 3 July 2013 the court of appeal refused to examine the evidence submitted by the applicant and upheld the first instance court decision. On 11 September 2013 the Higher Specialised Court upheld the decisions of the lower courts.

The applicant complains that her rights under Article 10 of the Convention had been violated. The applicant also complains under Article 6 that the courts did not examine the evidence which she submitted and did not take them into consideration.

QUESTIONS TO THE PARTIES

Question concerning all applications

Has there been an interference with the applicants ’ freedom of expression, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

Additional question concerning application no. 22434/14

Was there a violation of the applicant ’ s right to a fair trial under Article 6 of the Convention, in particular as concerns her allegation that the courts refused to accept and examine the evidence submitted by her?

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

70105/13

Klimov v. Ukraine

05/11/2013

Andriy Vitaliyovych KLIMOV 1978 Kharkiv Ukrainian

2.

22347/14

Mediakompaniya Slovo , TOV and Others v. Ukraine

07/03/2014

MEDIAKOMPANIYA SLOVO, TOV Zaporizhzhya Ukrainian Bogdan Yuriyovych VASYLENKO 1978 Zaporizhzhya Ukrainian Irina Andreyevna VASILENKO 1957 Zaporizhzhya Ukrainian

Sergiy Anatoliyovych ZAYETS

3.

22434/14

Samar v. Ukraine

10/03/2014

Valentyna Ivanivna SAMAR 1965 Simferopol Ukrainian

Oleksandr Oleksandrovych BURMAGIN