Communicated on 7 February 2017

FOURTH SECTION

Application no. 15963/10 Kostyantin Glibovych USOV against Ukraine lodged on 5 March 2010

STATEMENT OF FACTS

The applicant, Mr Kostyantin Glibovych Usov , is a Ukrainian national who was born in 1988 and lives in Kyiv.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

At the time of the events giving rise to the present application, the applicant was a journalist working for the Kommersant newspaper.

In its 15 October 2008 issue the newspaper published an article entitled The Greek bulk carrier Faina may happen to be Ukrainian. This article, co ‑ authored by the applicant and his colleague M.K., contained the following text:

“The Greek vessel Faina , which was captured by Somalian pirates near the Kenyan coastline, may be owned by a Ukrainian national. The bulk carrier belongs to the Kaalbye Group shipping company, which has been linked to I.U. [full name given], the Deputy Minister of Transport and Communications. [Sources] in the 5th U.S. fleet, whose destroyer Howard has recently been cruising near the Faina , have confirmed that Kaalbye Group is the owner of the vessel. In the meantime, I.U. himself has told [us] that this information is not true and that the vessel is owned by a different person. ...

The bulk carrier Faina was captured by Somalian pirates on 25 September close to the Kenyan coastline. All crew members ‒ seventeen citizens of Ukraine, two Russians and one Latvian ‒ have been taken hostage. Also on board are thirty-three tanks ... [and other armaments] ... supplied by Ukraine to Kenya under an official contract. ...

According to the International Maritime Bureau ’ s records, the owner and manager of the Faina is the Kaalbye Group shipping company. ...

Captain Jane Kampbel [from the 5 th U.S. fleet] reported to [us] yesterday that “ The bulk carrier Faina operating under the flag of Belize belongs to and is managed by Kaalbye Shipping Ukraine ”.

According to the Uniform State Register of Legal Entities, up until the end of summer 2006 [I.U.], who currently occupies the post of Deputy Minister of Transport and Communications, was the managing director of the Kaalbye Group. [I.U. ’ s] link to the Kaalbye Group shipping company is also mentioned in the biography posted on the official website of the Ministry of Transport and Communications.

Earlier it was stated in press reports that the owner of the captured vessel is V.A. [full name given], an Israeli national. A source in the Ministry of Transport has shared with [us] the information that Messrs I.U. and V.A. “have known each other for a long time, they have a joint business. ... There is an agreement that [V.A.] presents himself publicly as the owner of the vessel,” as stated by [our] source.

Yesterday [our] correspondent met [I.U.]. The conversation between them ran as follows:

- What connects you, members of your family, or close relatives to the Kaalbye Group Company?”

- Currently my younger son, A. [full name given] works for the company. I have left it, and he has naturally replaced me. Concerning the allegation that Kaalbye Shipping or the Kaalbye Group owns the Faina , I say unequivocally: no. The owner of the vessel has being participating in all the negotiation procedures for a long time now. He has documents confirming that he is the vessel ’ s owner. It is [V.A.]

- Are you acquainted with Mr [V.A.], and, if so, what is the relationship between you?

- I met him at a meeting of the National Security and Defence Council. Since that time he has telephoned me on several occasions. Before the incident with the Faina we were not acquainted ...

- Have you and [V.A.] had any direct or indirect connections in commercial undertakings?

- No, never.

- What, in your view, will happen to the captured vessel in the near future?

- The pirates will try to blackmail the government one more time. It will not work out. ... Subsequently, the crew will be liberated, and the vessel will be released. I think this will happen in two or three weeks.”

On an unspecified date I.U. instituted civil proceedings against the applicant, M.B., and the Kommersant-Ukraina CJSC publishing house, which owns the Kommersant newspaper, seeking a retraction of all the statements in the aforementioned article linking him to the Faina and to V.A. as being false and defamatory. He argued that these allegations depicted him in a false light and suggested that he had been engaging in corrupt business practices.

On 11 February 2009 the Pecherskyy District Court in Kyiv rejected this claim. The court noted, in particular, that the disputed article was a fair comment on a matter of public interest and that the authors had made a bona fide effort to research the underlying factual circumstances. In particular, the defendants had obtained a copy of a letter addressed to the International Maritime Bureau by Kaalbye Shipping Ukraine, an Odessa-based company. As was apparent from the text of the letter, following the capture of the Faina , the company had sought the Bureau ’ s assistance, representing itself as the vessel ’ s commercial manager. Although the disputed article referred to Kaalbye as the owner rather than the manager of the Faina , this inaccuracy could not be considered as defamatory to I.U. Moreover, information concerning the ownership of the Faina by Kaalbye had also been posted on the U.S. 5 th Navy Fleet ’ s website. Insofar as the authors linked the vessel to I.U. personally, their allegations were phrased as assumptions rather than statements of fact. The authors substantiated their comment by referring to I.U. ’ s former role as the managing director of Kaalbye – a fact which had not been contested − and quoted an anonymous source without endorsing this source ’ s statement as truthful. Moreover, immediately after quoting the source, they cited an interview with I.U. himself, refuting any allegations of ownership and expressly denying any affiliation with the Faina or V.A., its registered owner. The court concluded, in particular, as follows:

“Having analysed the information submitted, the accuracy of the data obtained by the defendants, the public importance of the publication , ..., and the plaintiff ’ s status as a public official, the court comes to the conclu sion that the claim is not well ‑ founded as no negative information concerning [I.U.] has been disseminated.”

On 20 May 2009 the Kyiv Court of Appeal quashed this ruling, following an appeal by I.U., and allowed his claim in part, having ordered the defendants to publish a retraction of the allegation that there was any link between him and the Faina or its official owner V.A. The court concluded, in particular, that the information concerning the plaintiff ’ s de facto ownership of the Faina had been presented as a statement of fact, specifically:

“... [ this text] does not contain allegations but is presented in an affirmative form, with a reference to a source – the Ministry of Transport and Communications of Ukraine − which makes this information appear particularly credible for the readership. This information is negative and defamatory to the plaintiff, who [is purported to] own and manage the Faina in breach of the provisions of applicable law, while occupying the post of a civil servant.

After publication of the aforementioned article, the Secretariat of the President of Ukraine had commissioned the State Security Service to verify the information ... the plaintiff had to provide explanations ... these facts are confirmed by the evidence obtained from the examination, but the first-instance court had groundlessly failed to evaluate them when passing its ruling. The above demonstrates that the publication of the disputed inaccurate information violated the plaintiff ’ s personality rights ...

A reference by the defendants ’ representatives to the fact that in their article they had referred to an outside source which had provided this information, and which they were entitled not to disclose to the court, does not absolve them from liability for having published inaccurate information. ...

The publisher of the information has not proved that it was accurate and therefore, in accordance with Article 277 of the Civil Code of Ukraine, such information must be retracted. ...

Inclusion [in the text of the article] of an interview with the plaintiff is of secondary importance because the plaintiff has the right to choose either to respond or to demand a retraction. As he has chosen to demand a retraction, the defendant should be obliged to publish one. Publishing the interview does not constitute sufficient satisfaction, in view of the nature of the unsubstantiated statements concerning the plaintiff. Reference to [I.U.] ’ s status as a public figure is also irrelevant, because the article is not “criticism”. ... the published article does not contain a critical assessment of the actions of the plaintiff as an official, it contains incorrect information alluding to a breach by the plaintiff of the laws of Ukraine, as the latter may not engage in entrepreneurial activity simultaneously with occupying the post of Deputy Minister. ...

The Judicial Panel holds ...

That Kommersant-Ukraina CJSC be ordered to publish in the next issue of the Kommersant newspaper ... the following retraction:

“On 15 October 2008 the Kommersant newspaper, in issue no. 184, published an article by journalists [the applicant] and M.B. [full name] entitled The Greek bulk carrier Faina may happen to be Ukrainian, which contained the inaccurate information that the Deputy Minister of Transport and Communication of Ukraine, [I.U.], is the de facto owner of the Faina , which, while transporting armaments, was captured by pirates near the Somalian coast; that Israeli citizen V.A., officially declared as the vessel ’ s owner, and [I.U.] have known each other for a long time and have a joint business; [and] that there was an agreement that [V.A] would publicly present himself as the official owner of the vessel.”

On 7 September 2009 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal on points of law.

B. Relevant domestic law

The relevant domestic law has been summarised in the Court ’ s judgments in the cases of Siryk v. Ukraine (no. 6428/07 , §§ 16 and 18-19, 31 March 2011) and Editorial Board of Pravoye Delo and Shtekel v. Ukraine , no. 33014/05, §§ 23-25, ECHR 2011 (extracts)).

COMPLAINTS

The applicant complains that the outcome of the case against him was unlawful and unfair and as such violated his right to freedom of expressi on. He refers to Articles 6 and 10 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, in particular, his right to impart information and ideas, contrary to Article 10 of the Convention? In particular, were the classification of the applicant ’ s utterances as statements of fact, rather than value judgments, and the court order to publish a retraction justified?