Communicated on 20 October 2020 Published on 9 November 2020

FIFTH SECTION

Application no. 8369/12 Igor Petrovych POCHYNOK and DRUK MEDIA PLUS, TOV against Ukraine lodged on 3 February 2012

SUBJECT MATTER OF THE CASE

The application mainly concerns striking a proper balance between the applicants ’ right to freedom of expression guaranteed by Article 10 of the Convention and the right to reputation (Article 8 of the Convention) of a State-owned company.

The first applicant, Mr Pochynok , was the editor-in-chief of Express newspaper. The second applicant was a legal person and a founder of the Express .

On an unspecified date in 2009 Ukrzalizpostach (hereinafter - “the UZP”), a State-owned company subordinate to the Ukrainian Railway Company (hereinafter – “the URC”), also a State-owned company, published two invitations to tender seeking to buy various railway equipment. Tender notice no. 32450 included 3 lots of a total value of 651,983,000 Ukrainian hryvnas (UAH) (approximately 56,024,800 euros (EUR)). Tender notice no. 33574 included one lot of a total value of UAH 232,861,000 (approximately EUR 19,705,200).

On 31 December 2009 and 15 January 2010, respectively, the URC announced that the private company Corporation KRT had won both tenders. At the time when Corporation KRT applied for the tenders and won them, it was owned by Mr Yaroslav Dubynevych and his brother Mr Bogdan Dubynevych , who each held 50% of the company ’ s shares. Mr Yaroslav Dubynevych was a representative of the URC to the Secretariat of the Parliament of Ukraine in 2008-2011 and a member of the “Block of Yuliya Tymoshenko ”, a political party whose founder and leader, Ms Tymoshenko , was the prime minister of Ukraine from 2007 to 2010. Mr Bogdan Dubynevych was an active member of the same political party.

The results of the tender procedure were not challenged and the URC concluded commercial contracts with Corporation KRT for the purchase of the equipment mentioned in the tender notices.

In April 2010 the first applicant wrote, and published in the Express newspaper, an article alleging that the director of the URC, Mr Kostyuk , had helped Corporation KRT to win the tenders because he was on good terms with its owners. The first applicant also mentioned that the owners of Corporation KRT were involved in unlawful operations involving the URC and other State companies and that the money obtained from these operations was used to fund the participation of Yuliya Tymoshenko in the Presidential elections of 2010. The article contained, in particular, the following six statements:

“ Ukrzalizpostach is directly controlled by the head of the Ukrainian Railway Company [Mr Kostyuk ]”

“After Kostyuk was appointed the head of [URC], the companies belonging to [Bogdan and Yaroslav ] Dubynevych started to actively win tenders issued by [URC]”

“Only several operations carried out by companies belonging to Dubynevych [brothers] with [URC] during the past several months reached the amount which almost equals 2 billion hryvnias”

“... it would be interesting to know whether Yu. Tymoshenko was aware of these scams when she was sitting in the chair of Prime Minister?”

“It can even be assumed that there was a scheme, according to which Kirpa [head of URC before 2004] set an objective, Kostyuk carried out operation work on behalf of the railways and Dubynevych provided the rest. In general”

“... indeed this link is dubious because not all people are poor. Especially those whose companies, as it is fashionable to say, “ co-operate ” with the railway.”

The URC instituted proceedings in the Frankivskyy District Court of Lviv against both applicants, seeking to oblige them to retract the six statements set out above. The URC stated that those statements were untrue and damaged its reputation.

On 23 September 2010 the court found in favour of the URC, establishing that the statements were false and damaged the reputation of the URC. The court ordered the applicants to retract these statements in the Express newspaper.

On 26 May 2011 the Lviv Regional Court of Appeal upheld the decision of the first instance court.

On 26 August 2011 the Higher Specialised Court of Ukraine rejected the applicants ’ request for leave to appeal in cassation as being unsubstantiated.

The applicants complain, relying on Article 10 of the Convention, that the courts ordered them to retract the statements set out above. They noted that in the article the first applicant had expressed doubts as to the transparency of the tender procedures and that those doubts were well ‑ founded. Some of the statements contained in the article were value judgments not susceptible of proof. The applicants also complained, relying on Article 6 of the Convention, that the courts found against them and, in particular, the Higher Specialised Court rejected their request for leave to appeal in cassation.

QUESTIONS TO THE PARTIES

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