FIFTH SECTION

Application no. 19382/08 Vladimir Viktorovich LYKIN against Ukraine lodged on 8 April 2008

STATEMENT OF FACTS

The applicant, Mr Vladimir Viktorovich Lykin, is a Ukrainian national, who was born in 1953 and lives in Molodetske. He is represented before the Court by Mr V. F. Filipenko , a lawyer practising in Donetsk.

A. The circumstances of the case

On 28 January 2007 the applicant, a member of the Shakhtarsk District Council and the President of the local branch of the Party of Regions at the material time, read out at a public meeting of the party members a letter addressed to him by voters. The meeting took place in the village of Zolotar i vka and was attended by more than forty party members and local inhabitants. The letter contained eleven signatures by persons who stated that they were inhabitants of Zolotarivka village. The letter concerned dissatisfaction of the authors with the performance of G.Sh., the former Head of the Zolotarivka Village Council, and a current party activist serving on the Shakhtarsk District Council. It contained, in particular, the following text:

“[G.Sh.] is a grabber and a petty tyrant. How can he serve the District after having destroyed all the work in Zolotarivka during the four years in office? He received nobody, took decisions unilaterally, was rude and impolite. He came to work in the morning, but then hid in his illegal firms in Mak i y i vka or in the computer centre in Khar t syzk, while continuing to receive his salary and bonuses. Funds were allocated for renovation of the water supply, but he did not manage them ... All the village ... was drowning in weeds and garbage ... There is no talk about the petty things, we want to know specifically, why [G.Sh.] should get away with the following acts:

(1). [he] collected 30 hryvnias per household [for renovation of the water supply] at the Sh. and P. streets, and what did he spent it on?

(2). [he] cut out all the metal parts from the boiler room in the kindergarten ... ;

(3). [he] uncovered and removed 400 metres of water pipes;

(4). not without his knowledge the century-old oak trees in the forest were felled.

We request your support ... All who voted for the [Party of] Regions, which is 95% [of the voters] are disgusted and demand [ G.Sh .] ’ s resignation of from the District Council. He should be expelled from the Party of Regions”.

After having read out the letter, the applicant expressed his personal dissatisfaction with G. Sh . ’ s performance as a party activist and an elected public official and was joined by several other participants. Mrs A. stated that she was one of the authors of the letter and that she subscribed to all the allegations contained in it. G.Sh. replied by arguing that the allegations against him were defamatory and lacked any evidential basis whatsoever.

In February 2007 G.Sh. instituted civil proceedings in the Shakhtarsk Court seeking moral damages from the applicant for having disseminated defamatory information in his respect. He maintained, in particular, that the applicant had had no right to read out the letter, which contained unverified defamatory information accusing him of criminal and corrupt conduct. As the purported authors of the letter had signed it without indicating their full names and address details, this letter should have been disposed of without any follow-up as an anonymous application within the meaning of the Act on applications of citizens.

On 17 September 2007 the Shak h tarsk Court declared that the applicant had been at fault in defaming G.Sh. and awarded the latter UAH 200 (hryvnias) in moral damage. The court found, in particular that the letter was an anonymous application of citizens within the meaning of Article 5 of the Act on applications of citizens. Instead of leaving it aside without follow-up, the applicant had acted unlawfully in publicising the letter without verification of the serious accusations against G.Sh. contained in it.

The applicant appealed. He argued that the Act on applications of citizens was not applicable to the facts of the case. In particular, reciting and discussing the content of a privately received letter at a political party gathering could not be deemed an official follow-up on an anonymous application of citizens within the meaning of the above instrument. Moreover, the letter was not “anonymous”, at least after Mrs A. had claimed authorship. As regards the nature of the letter, it contained no false allegations of fact. In particular, even G.Sh. himself had confirmed that 30 hryvnias per household had been collected for renovation of the water supply conduit and that the boiler-room equipment in the kindergarten had been dismantled upon his orders. There was also evidence in support of other factual allegations. Critical assessment of these facts by some village inhabitants was not susceptible of proof and constituted their reasonable value judgments, for which the applicant could not be responsible. In addition, G.Sh. should have been tolerant of the criticism, as it related to his performance as an elected public officer.

On 3 December 2007 the Donetsk Regional Court of Appeal upheld the judgment of the Shak h tarsk Court. It found that the court had rightly concluded that the letter had been anonymous, as it was not possible to identify the authors from the signatures contained therein; that the letter was addressed to the applicant as a public official rather than a private person, hence the Act on applications of citizens had been properly applied. Furthermore, the trial court had rightly concluded that the applicant had not verified the accuracy of the accusations contained in the letter as required by Article 302 of the Civil Code of Ukraine and had therefore been liable for disseminating defamatory statements against G.Sh.

On 30 January 2008 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation.

B. Relevant domestic law

1. Constitution of Ukraine

Article 34

“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.

Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.

The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crimes, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.”

2. Civil Code of Ukraine of 2003 (in force since January 2004)

Article 277. Refutation of the inaccurate information

“ ...

3. Negative information disseminated about a person shall be considered inaccurate unless the person, who disseminated it, proves otherwise. ... ”

Article 297. Right to respect of one ’ s dignity and honour

“1. Everyone shall have the right to respect of his/her dignity and honour.

2. Dignity and honour of a physical person shall be inviolable.

3. A physical person shall have the right to apply to court with a claim to defend his/her dignity and honour.”

Article 299. Right to inviolability of professional reputation

“1. A physical person shall have the right to inviolability of his/her professional reputation.

2. A physical person shall have the right to apply to court with a claim to defend his/her professional reputation.”

Article 302. Right to information

“ ...

2. A physical person disseminating information shall be obliged to verify its accuracy.”

3. Law of Ukraine “On the applications of citizens” (Act on applications of citizens) no. 393/96-VR of 2 October 1996

Section 5. Elements of an application

“Applications shall be addressed to bodies of State power and local self-governance, enterprises, institutions, organisations regardless of their form of ownership, associations of citizens or official persons, competent to resolve the matters raised in the applications.

An application must indicate the full name [and] residence address of the citizen, describe the substance of the matter raised, [contain] comments, proposals, declarations or complaints, requests or demands.

An application may be filed by an individual person (an individual [application]) or by a group of persons (collective [application]). ... ”

Section 8. Applications, which may not be processed and resolved

“A written application, which does not indicate the place of residence, [or] is not signed by the author (authors), as well as the one, the authorship of which may not be discerned, shall be considered anonymous and shall not be examined. ... ”

4. Law of Ukraine “On information” (Data Act) no. 2657-XII of 2 October 1992

Section 47-1. Dispensation from liability

“Nobody may be held liable for expression of value judgments.

Value judgments, save for insult or libel, are expressions, which do not contain factual data, such as criticism, evaluations of acts, as well as expressions, which cannot be interpreted as containing factual data regard being had to the manner of employing the language tools, in particular, the use of hyperboles, allegories, satire. Value judgments may not be subject to refutation and proof of their accuracy ...

A person shall not be liable for publication of restricted information, if the court finds that this information was of public importance. ... ”

COMPLAINTS

The applicant complains under Article 10 of the Convention that the judicial authorities had unnecessarily curtailed his right to freedom of expression.

He further complains under Articles 6 § 1 and 13 of the Convention that the judicial authorities incorrectly took the evidence, assessed the facts and applied the law in adjudicating the case brought against him.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, in particular his right to impart information, contrary to Article 10 of the Convention?

2. Did the applicant have a fair hearing in the determination of the civil claim lodged against him, in accordance with Article 6 § 1 of the Convention?