Communicated on 10 March 2016

FIFTH SECTION

Application no. 23335/07 SLOVO BATKIVSHCHYNY against Ukraine lodged on 16 May 2007

STATEMENT OF FACTS

The applicant company is the editorial board of the newspaper Slovo Batkivshchyny , registered in Ukraine. The applicant company ’ s founder and sole owner is the Batkivshchyna political party ( політична партія “ Всеукраїнське об ’ єднання “ Батьківщина ” ).

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

On 22 June 2001 Slovo Batkivshchyny published two articles entitled “The Footprints of the ‘ Assassination Attempt ’ on Natalia Vitrenko lead to Bankova Street” [1] (“ Следы « покушения » на Наталью Витренко ведут на Банковую ”) and “ Provocation Is the Mother of the Revolution? Subjective Notes of a Parliamentary Journalist ” (“ Провокация – мать революции ? Субъективные заметки парламентского журналиста ”) (hereinafter “the First Article” and “the Second Article” respectively).

The relevant extracts from the articles read as follows. The passages of the articles which were the subject of the subsequent defamation proceedings are underlined and numbered for future reference.

First Article:

“ The Footprints of the ‘ Assassination Attempt ’ against Natalia Vitrenko lead to Bankova Street

We will not go deep into the progress of the investigation and trial of the so-called case against Sergey Ivanchenko which was examined by the Dnipropetrovsk Regional Court. Nobody was surprised by the judges ’ obedience in delivering a guilty verdict and a fifteen-year sentence that had long been sanctioned ‘ from above ’ .

But let us listen to Sergey Ivanchenko ’ s own intelligent and balanced arguments, which he presented in his closing speech at the trial, and which unequivocally show that the traces of this ‘ assassination attempt ’ lead to Bankova Street.

Who profits?

At the beginning of his closing speech, in which he accused the regime, Sergey Ivanchenko said, quite reasonably, that any normal person must have at least a motive for a crime.

After only a passing glance at Ivanchenko ’ s biography and social status, an average citizen can satisfy himself that this well-to-do businessman (six children, elderly parents, stable friendly relations with business partners) did not and could not have had such a motive.

‘ Presidential candidate Leonid Kuchma did have a motive ’ , said Sergey Ivanchenko in his speech, and he tried to give facts in support of this statement.

First of all, he meant the speed (half an hour after the event) with which the First National TV channel, which is under the President ’ s control, had reported that the ‘ assassination attempt ’ had been organised by O. Moroz ’ s election agent.

...

Was there a hand grenade?

There is no use waiting for the truth from Natalia Vitrenko – she is bogged down in her lies [1.1]. Besides, the black circles under her eyes, mercilessly highlighted by ICTV ’ s cameras during the Freedom of Speech television programme, bore witness to the fact that her brains have been muddied by strong juices [1.2]. But perhaps, at least, her spokesperson has a good memory?

We are talking about the fact that every Kyivan journalist who called the Progressive Socialists ’ press team that Sunday (the day after the assassination attempt) can confirm. Vitrenko ’ s spokesperson told all of them that the assassination attempt had been committed using a hand grenade simulator ( взрывпакет ) filled with metal shavings [1.3].

‘ Not hand grenades? ’ asked the surprised journalists. ‘ No, no ’ vigorously denied the spokesperson, who then said that the text of the press release had been drafted by Natalia Vitrenko herself and that she was talking specifically about metal shavings, ‘ You know, the type of scrap found in metalworking plants ’ [1.4]...

Kuchma is peace!

Sergey Ivanchenko believes that this was the slogan which had to be announced after the faked assassination attempt ( после псевдопокушения ) on Natalia Vitrenko [1.5] . Another, no less important, aim was to distract voters from the election rallies of Leonid [Kuchma ’ s] potential competitors.

At the end of the day, the explosion (not of a hand grenade but of a simulator ! ) had to rapidly boost Natalia Vitrenko ’ s ratings to ‘ help her get into the second round of the elections ’ [1.6]”.

Second Article:

“ Provocation Is the Mother of the Revolution? Subjective Notes of a Parliamentary Journalist

Natalia Vitrenko is a remarkable star in the impoverished Ukrainian political sky. The government is trying to manipulate the opposition ’ s movements using her ...

A loud political show, with Natalia Mikhailovna in the leading role, opened at the press conference where our national pasionaria , who had been victimised by ‘ bomb-throwers ’ , agreed to talk to her own journalists. We must stress: ‘ her own ’ , because the only persons allowed to attend were a correspondent from Dosvitni Vogni , the Progressive Socialist Party ’ s newspaper, and several representatives of the regional media.

It was one of them who later recounted, dumbfounded by what he had seen, how Natalia Mikhaylovna had started to pull up her blouse and then proceeded to bare her thighs, so that all those in attendance could see the evidence that there were scars and bruises on the body of this fighter for the truth [2.1].

...

In general, Ms Vitrenko ’ s entire life, her entire modus operandi , has been one uninterrupted provocation [2.2]. Her worst enemies are the Socialist Party, the Batkivshchyna Party, and Oleksandr Moroz and Yuliya Tymoshenko personally [2.3]. Why? One would have to ask the masters and the clients of the ‘ fierce Natalia ’ .

...

All visitors to the Parliament ’ s cafeteria know: it is a waste of time to queue behind Vitrenko. Playing a kind mother with multiple children, the monumental Vitrenko buys ten to fifteen sandwiches, cakes and juices in one go for her whole team ... They obediently freeze when Natalia Vitrenko points her finger at the deputy editor of the Zerkalo Nedeli newspaper:

- See Sergey R. here?! He used to be a good journalist but then he sold out to the American imperialists!

What Sergey R. lives on is this particular journalist ’ s business. But for experienced Parliament watchers there is no mystery as to who pays for Natalia Vitrenko ’ s sandwiches.

Without a [credible] political platform ... and unwilling to cooperate with anyone in the political sphere, the Progressive Socialist keeps herself afloat on her typical feminine hysterics [2.4] .

But these hysterics are paid for by the one at whom she does not sling mud [2.5].

Above all, it is the President who remains her ‘ sacred cow ’ [2.6]. A monthly sum of 50,000 dollars [USD], which keeps this pasionaria ’ s boundless love for her idol alive, constantly comes up in conversations between the visitors to the Parliament ’ s cafeteria. And also, they say, another ten thousand (but hryvnias [UAH] this time) which the administration puts aside for the monthly needs of the Progressive Socialist ’ s dwarf party [2.7].

Direct confirmation of these political rumours comes from Sumy Region Governor V. Shcherban ’ s interview with Zerkalo Nedeli (issue 32, 1999). In it, Shcherban expressly said: ‘ Yes, she did ask me for money, and I gave it to her ’ .

... And where Mr Shcherban himself gets his money from is a matter for the conscience of his godfather, the chief executive officer of Ukraine.

...

They say that the leader of the Communists, Symonenko, has long ceased to be a scarecrow for Western bankers ...

Therefore, one needed a ‘ plan B ’ just in case. Can a hysterical individual with indecorous dark circles under her eyes, which cannot be hidden from the merciless TV cameras, really scare anyone [2.8]. ”

Ms Natalia Vitrenko, at the time a member of parliament, and the leader of the Progressive Socialist Party brought a claim for defamation against the applicant company, seeking a declaration that the statements 1.1 through 1.6 and 2.1 through 2.8 were untrue, their retraction, and compensation for non-pecuniary damage. She acted in her personal capacity and on behalf of her party.

In the course of the subsequent proceedings before the domestic courts the applicant company argued that the articles were based on the information previously published in a number of newspapers and statements and speeches in the Parliament, specifically:

- An article published on 5 October 1999 in Segodnya, a major national daily, which contained a detailed report on the circumstances surrounding the assassination attempt on Ms Vitrenko which had taken place in Dnipropetrovsk Region on 2 October 1999. In particular, the article reported a disagreement between the eyewitnesses and experts about the weapon used in the crime: the former reporting that it had been a bottle filled with metal shavings and the latter concluding that the attackers had used two standard-issue military hand grenades. It also discussed at length the possible complicity of Mr Ivanchenko, the head of a local presidential campaign office of Mr Oleksandr Moroz, in the assassination attempt;

- An article published on 17 October 1999 in Galytski Kontrakty , a business newspaper, implying that only businessmen close to the government had the funds to finance Ms Vitrenko ’ s presidential campaign;

- An article published on 17 May 2001 in Molod Cherkashchyny , a regional newspaper, which contained a report on a meeting held by Ms Vitrenko in Cherkasy on 7 May 2001 at which she had made various negative remarks about Mr Moroz and Ms Tymoshenko, in particular saying that Ms Tymoshenko should go to jail for corruption and implying that Mr Moroz and his party had been associated with “pro-fascist organisations”. It also quoted Victor Pinzenyk, a political party leader, as saying that “Ms Vitrenko is performing the functions of a puppet opposition within the limits set by those who direct her actions”;

- Sergey Ivanchenko ’ s closing speech at his trial, published in June 2001 in Tovarysh , the Socialist Party ’ s newspaper.

On 8 April 2003 the Kyiv Pecherskyy District Court rejected the claim. Referring in particular to Article 10 of the Convention, it held that the impugned articles contained critical comments rather than defamatory statements and that it had not been established that they were untrue and damaging to the plaintiffs ’ honour, dignity and reputation.

On 23 November 2006 the Kyiv City Court of Appeal (“the Court of Appeal”) quashed the judgment of 8 April 2003. It found erroneous the first-instance court ’ s conclusion that the contested statements had constituted critical comments. The Court of Appeal found that statements 1.1, 1.3, 1.5, 2.1, 2.3, 2.7 and 2.8 had been statements of fact, which had been untrue and damaging to Ms Vitrenko ’ s honour and dignity and to her party ’ s reputation, specifically:

“There is no use waiting for the truth from Natalia Vitrenko” [1.1]

“Vitrenko ’ s spokesperson told them all that the assassination attempt had been committed using a hand grenade simulator filled with metal shavings” [1.3]

“after the faked assassination attempt on Natalia Vitrenko” [1.5]

“It was one of them who later recounted, dumbfounded by what he had seen, how Natalia Mikhaylovna had started to pull up her blouse and then proceeded to bare her thighs, so that all those in attendance could see the evidence that there were scars and bruises on the body of this fighter for the truth” [2.1]

“Her worst enemies are the Socialist Party and Batkivshchyna Party, and Oleksandr Moroz and Yuliya Tymoshenko personally” [2.3]

“A monthly sum of 50,000 dollars which keeps alive this pasionaria ’ s boundless love for her idol constantly comes up in conversations between the visitors to the Parliament ’ s cafeteria. And also, they say, the other ten thousand (but hryvnias this time) which the administration puts aside for the monthly needs of the Progressive Socialist ’ s dwarf party” [2.7]

“A hysterical individual with indecorous dark circles under her eyes, which cannot be hidden from the merciless TV cameras” [2.8] ”

In reaching this finding, the Court of Appeal stated that the applicant company had failed to prove the veracity of these statements. The Court of Appeal noted the applicant company ’ s argument that it had relied on prior media publications and speeches in Parliament, as the basis for the impugned statements, but rejected it, finding that the statements were not exact quotes from the sources invoked by the applicant company and that they did not contain any references to the alleged sources. The Court of Appeal also noted that on 14 June 2001 the Dnipropetrovsk Regional Court had found Mr Ivanchenko guilty of the assassination attempt on Ms Vitrenko, which he had committed by throwing two hand grenades at her.

The Court of Appeal rejected Ms Vitrenko ’ s claim with respect to the remaining statements noting that “ the limits of acceptable criticism are wider as regards a politician acting in a public capacity, than as regards a private individual, since the former inevitably and knowingly lays herself open to close scrutiny of her every word and deed by journalists and the public at large. A politician must consequently display a greater degree of tolerance and openness to severe criticism and close scrutiny .”

The Court of Appeal ordered the applicant company to publish a retraction of the statements found untrue. It also awarded non-pecuniary damages of UAH 1,500 to Ms Vitrenko and of UAH 1,000 to her party (at the time, about 222 euros (EUR) and EUR 148 respectively).

On 11 May 2007 the Supreme Court upheld the ruling of the Court of Appeal finding no indication that it had breached any provisions of domestic substantive or procedural law.

COMPLAINT

The applicant company complains under Article 10 of the Convention of a violation of its freedom of expression.

QUESTION TO THE PARTIES

Has there been a violation of the applicant company ’ s right to freedom of expression guaranteed by Article 10 of the Convention?

[1] In Ukrainian usage, ‘Bankova Street’ or ‘Bankova’ is sometimes used to designate the President and the President’s Administration .