Communicated on 5 October 2020 Published on 26 October 2020

FIFTH SECTION

Application no. 63882/14 Vitaliy Oleksandrovych LAZEBNYK against Ukraine lodged on 19 September 2014

STATEMENT OF FACTS

The applicant, Mr Vitaliy Oleksandrovych Lazebnyk , is a Ukrainian national who was born in 1982 and lives in Kyiv. He is represented before the Court by Ms Lyudmyla V. Opryshko , a lawyer practising in Kyiv.

The applicant was working as a photographer for the Ukrainian news website tochka.net.

On 4 May 2012 the applicant learned that a group of persons had attacked a church in a park in Kyiv and had started smashing property located in the churchyard. The applicant arrived at the yard in his capacity as a photographer and started taking photos for tochka.net. Several journalists were on the spot, observing the event and video-recording it. Suddenly the applicant felt blows on his head and body. The applicant was hit from behind and did not see the offender. The applicant was taken to a hospital where he received medical assistance. According to the applicant, at the hospital he was approached by a police officer who told him that it was likely that he had been hit by T., the park manager.

Still on 4 May 2012, the applicant lodged a complaint with the Dniprovskyy District Police Office stating that he had been attacked by an unknown person and requesting institution of a criminal investigation into this matter. The police instituted a pre-investigation inquiry into the applicant ’ s complaint, which was later transferred to the Kyiv Police Office.

In a letter of 13 May 2012 drafted by an investigator dealing with the applicant ’ s case it is stated that, having watched the video-recording seized from one of the journalists present during the events on 4 May 2012, the police established that during the attack “a conflict arose between [T.], the manager of the park where the church was located, and the journalists present on the spot because T. wanted to prevent them from taking photos and video-recording the attack [on the church]”.

The Kyiv Police Office established that during the conflict the applicant had been attacked by T., whose actions had been directed against all the journalists present and not against the applicant personally. The Kyiv Police Office decided that the attack on the journalists, including the applicant, had to be investigated as a crime under Article 171 of the Criminal Code (“Obstruction to lawful professional activities of a journalist”). According to Article 112 of the Code of Criminal Procedure, crimes under Article 171 had to be investigated by a prosecutor ’ s office. The materials of the applicant ’ s case were thus transferred to the Dniprovskyy District Prosecutor ’ s Office.

On 25 May 2012 the Dniprovskyy District Prosecutor ’ s Office issued a decision refusing to institute a criminal investigation into the attack on the applicant under Article 171 of the Criminal Code. The prosecutors noted that, during the pre-investigation inquiry, several journalists who had been present during the event on 4 May 2012 had stated that they had seen an unknown man hitting the applicant from behind with a metal bar. T. was also questioned and stated that on 4 May 2012 he had arrived at the church and seen a group of persons smashing property in the churchyard. According to T., these persons had been directed by several people with cameras and video cameras, also present in the yard. T. said that when he was attacked by one of the masked persons smashing property, he had grabbed a metal bar and swung it, to try to protect himself. Y. and M., who worked at the church and also witnessed the events, confirmed T. ’ s statements and said that they had not seen him hitting anyone with the metal bar. The applicant ’ s superior, Ko ., was questioned and said that the applicant worked for tochka.net as a photographer, but he was not a journalist within the meaning of Ukrainian legislation. However, Ko . considered the applicant to be a journalist.

At the end of the decision of 25 May 2012 it is stated “accordingly, the victim of a crime under Article 171 of the Criminal Code is a professional journalist. On the basis of the above, and taking into consideration that there is no information demonstrating that there was any obstruction to the professional activity of a journalist, because [the applicant] is not a professional journalist [according to the Ukrainian legislation], [the prosecutor ’ s office decides] to refuse to institute a criminal investigation into obstruction of lawful professional activitie s of a journalist under Article 171 of the Criminal Code”.

The applicant did not appeal against the prosecutors ’ decision of 25 May 2012.

On 17 September 2012 the police decided to institute a criminal investigation into the attack on the applicant under Article 296 of the Criminal Code (“Hooliganism”). On the same date the applicant was recognised as a victim in the case.

In June 2013 police investigators suggested that the applicant institute private prosecution proceedings under Article 125 of the Criminal Code (“Intentional infliction of light bodily injuries”) concerning the events on 4 May 2012, but the applicant refused to do so.

In July 2013 the applicant ’ s representative sent letters to the Dniprovskyy District Prosecutor ’ s Office asking to be informed of any developments in the applicant ’ s case.

On 10 September 2013 the Dniprovskyy District Police Office issued a decision closing the criminal investigation instituted on 17 September 2012 into the attack on the applicant under Article 296 of the Criminal Code. In the decision it was stated that, during the investigation, T. had been questioned and had said that on 4 May 2012 he had swung a metal bar to protect himself and it was possible that he had hit someone. The applicant was also questioned and said that it could not be ruled out that T. had taken him for one of the attackers and had hit him with a metal bar. It was further stated in the decision that T. had inflicted light bodily injuries on the applicant (Article 125 of the Criminal Code) but a criminal investigation into this kind of crime could be instituted only in the framework of private prosecution proceedings, which could be initiated only upon a victim ’ s request, while the applicant refused to lodge such a request. The criminal investigation instituted under Article 296 could not be continued because it was clear that T. ’ s attack on the applicant had not been motivated by “disrespect to society”, one of the distinctive features of the crime of hooliganism within the meaning of Article 296 of the Criminal Code. At the end of the decision of 10 September 2013 it was stated that it could be challenged before a court within ten days of receipt of its copy.

On 10 October 2012 the applicant received a copy of the decision of 10 September 2013.

On 16 October 2013 the applicant challenged the decision of 10 September 2013 before the Dniprovskyy District Court. He stated that T. ’ s actions constituted hooliganism in the sense of Article 296 of the Criminal Code. In particular, T. had acted out of disrespect to society and thus a criminal investigation under Article 296 had to be continued. The applicant also noted that T. had prevented him from collecting and imparting information and this aspect of T. ’ s actions had not been investigated.

On 17 October 2013 the court returned the appeal without consideration, for non-compliance with the ten-day time-limit.

On 20 March 2014 the Kyiv Court of Appeal quashed the decision of 17 October 2013, examined the applicant ’ s appeal against the decision of 10 September 2013 on its merits and found it to be unsubstantiated. The court of appeal noted that the investigation into the attack on the applicant had been thorough. As regards the applicant ’ s submission that the authorities had not investigated whether T. ’ s actions aimed to obstruct journalistic activity, the court of appeal noted that the applicant had not appealed against the decision of 25 May 2012 (see above). The decision of 20 March 2014 was not subject to appeal and became final.

Criminal Code of Ukraine (as in force at the material time)

Article 171. Obstruction of lawful professional activity of a journalist

“1. Intentional obstruction of lawful activities of journalists – is punishable by a fine in the amount of up to fifty non-imposable minimal incomes or by arrest for up to six months, or deprivation of liberty for up to three years.”

Article 296. Hooliganism

“1. Hooliganism, that is a serious violation of public order motivated by disrespect for society, which is accompanied by special audacity or exceptional cynicism, is punishable by a fine in an amount from five hundred to one thousand non-imposable incomes or an arrest for up to six months or deprivation of liberty for up to five years.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the criminal investigation was too lengthy, that he was not informed of the course of the investigation and that he did not have access to the materials concerning the investigation.

The applicant complains under Article 10 of the Convention that the state authorities did not properly investigate the attack, which was aimed at preventing him from collecting and imparting information of public interest. In particular, the investigation was too lengthy, not sufficiently thorough and did not lead to the punishment of the offender. In addition, the state authorities investigated the attack as a crime of hooliganism instead of as a crime of obstruction of lawful activities of journalism and did not investigate the connection between the journalistic activity which he had been carrying out and the attack on him.

QUESTION TO THE PARTIES

1. Has the applicant exhausted domestic remedies with respect to his complaint under Article 10?

2. If so, in so far as the investigation into the attack on the applicant is concerned, did the Government discharge its positive obligation under Article 10 of the Convention to take the necessary measures to investigate a conduct designed to restrict journalistic activity, including unlawful acts involving violence committed against journalists (see Özgür Gündem v. Turkey no. 23144/93, § 43, ECHR 2000 ‑ III; Dink v. Turkey, nos. 2668/07 and 4 others, § 137, 14 September 2010)?