Communicated on 20 October 2020 Published on 9 November 2020

FIFTH SECTION

Application no. 76594/13 Volodymyr Ivanovych VYSOTSKYY against Ukraine lodged on 28 November 2013

SUBJECT MATTER OF THE CASE

The case concerns defamation proceedings instituted by the applicant and the applicant ’ s disbarment.

On 15 October 2012 advocates N., F., and M. wrote an open letter to the Foundation Conference of Advocates of Ukraine in which they complained that the applicant, who at the time was the Head of the High Qualification Commission of Advocates (“The Commission”) and a member of the High Council of Justice, was misusing his position and conducted destructive and unlawful activity. In particular, they alleged that he had used the official web-site of the Commission to publish an article reflecting his personal views and, in particular, calling advocates to disobey decisions of qualification disciplinary commissions concerning foundation meetings of advocates in regions, disregard courts ’ decisions delivered in this respect and hold alternative foundation conferences of advocates. The claimants also alleged that the applicant had threatened them, put pressure on judges who had examined cases involving the Commission and that he had interfered with the activity of the Zakarpattya Regional Qualification Commission of Advocates. A copy this letter was also sent by the advocates to the High Council of Justice.

On 22 October 2012 the applicant instituted defamation proceedings against N., F., and M. on account of their allegations in the open letter.

On 26 November 2012 the first-instance court rejected the applicant ’ s claim having found, inter alia , that the letter could not be a subject-matter to defamation proceedings as it was not a public/media statement but a complaint addressed to the competent state body, which the lawyers expressed in an open way and which contained their assessment of the applicant ’ s behaviour. In a separate ruling (“the ruling”), delivered on the same date, the court noted that it had been established in the course of the examination of the case that the applicant had breached the law on a number of occasions as suggested by the defendants, in particular by publishing the impugned statements referred to by the defendants on the Commission ’ s web-site. In the same ruling the court obliged the Higher Qualification Disciplinary Commission of Advocates (“the Higher Disciplinary Commission”) to examine that issue on its nearest agenda. The applicant appealed against the judgment and the ruling of 26 November 2012.

On 7 February 2013 the Court of Appeal of Zakarpattya Region rejected the applicant ’ s appeal and upheld the findings of the first-instance court, having excluded from the text of the ruling the obligation for the Higher Disciplinary Commission to put the applicant ’ s case on its agenda. This judgment was upheld by the Higher Specialised Court for Civil and Criminal Matters on 30 May 2013.

In the meantime, on 18 February 2013 the disciplinary board of the Kyiv Regional Qualification Commission of Advocates (“the Kyiv Commission”) instituted disciplinary proceedings against the applicant on the basis of a number of complaints and courts ’ decisions, including the ruling of 26 November 2012, which had been sent to it by the Higher Disciplinary Commission. On 5 April 2013 it issued an opinion that the applicant should be disbarred as he had breached the Advocate ’ s oath and had regularly failed to comply with the rules of conduct for lawyers. On 24 April 2013 the Kyiv Commission approved the above decision of its disciplinary board and ordered the applicant ’ s disbarment.

On 17 February 2014 the Sevastopil Administrative Court of Appeal, annulled as unlawful and disproportionate the decision of the Kyiv Commission of 24 April 2014 on the applicant ’ s disbarment. It found, inter alia , that the Kyiv Commission had had no powers to conduct disciplinary proceedings against the applicant and that the Higher Disciplinary Commission had overstepped the law when sending the materials in respect of the applicant to the Kyiv Commission instead of the one located in Sevastopil , the registered place of the applicant ’ s activity as a lawyer. The Court of Appeal also found that the court ’ s ruling of 26 November 2012 had not been of prejudicial character as it only “revealed” but not “established” violations and that all allegations against the applicant should have been properly checked by a competent disciplinary body. It went to note in this respect that in a final judgment of 30 May 2013 the Kyiv Court of Appeal, which examined the applicant ’ s appeal in the proceedings brought at some stage against him by N., F., and M., established that the applicant had not used the Commission ’ s web-site for his own interests as he had published the impugned article in his official capacity. Furthermore, the Sevastopil Administrative Court of Appeal found that there had been no evidence suggesting that the article contained any call to disobey court decisions and that the applicant ’ s interpretation of the procedure for holding advocates conferences in regions corresponded to the Commissions ’ decision taken on the matter; the applicant ’ s call for holding “an alternative” conference of advocates did not constitute a disciplinary offence. Lastly, the court found that no admissible evidence had been available in the file to support other allegations which served a basis for the decision on the applicant ’ s disbarment.

On 20 June 2017 the Higher Administrative Court closed the cassation proceedings in the case finding that it was impossible to examine the cassation appeals lodged against the judgment of 17 February 2014 as the case-file had been destroyed.

The applicant complains under Articles 6, 8 and 10 of the Convention that Ukrainian courts had failed to protect his reputation and personal integrity against untrue, defamatory statements and that the court ’ s ruling of 26 November 2012 and the following disbarment had amounted to a violation of his rights to respect for private and professional life as well as his freedom of expression.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a victim of violations of Articles 8 and 10 of the Convention, within the meaning of Article 34?

2. Did the applicant have at his disposal effective domestic remedies in respect of his complaints under Article 8 and 10 of the Convention? If so, has the applicant exhausted those remedies? Was the applicant entitled to any compensation following the judgment of 17 February 2014 by the Sevastopil Administrative Court of Appeal?

3. Has there been an interference with the applicant ’ s freedom of expression, in particular his right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention? If so, was it justified under Article 10 § 2 of the Convention?

4. 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?