Communicated on 19 May 2017
FOURTH SECTION
Application no. 41988/08
Mariya Leontiyivna ABRAMOVA
against Ukraine
lodged on 24 July 2008
STATEMENT OF FACTS
The applicant, Ms Mariya Leontiyivna Abramova, is a Ukrainian national, who was born in 1970 and lives in Poltava.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 April 2003 the applicant’s employer, Grebinkivska District State Administration (“the Administration”), received a Statement of the Prosecutor’s Office of Grebinkivskyy District dated 17 April 2003 (“the statement”). The document analysed the amount of preventive social work performed by the applicant with minors in 2002 concluding that the applicant, as the head of juvenile service department, had no knowledge of the relevant law and held irresponsible attitude towards her professional duties. The document contained a demand to bring the applicant to disciplinary responsibility. As appears from the judgement of the Court of Appeal of Poltava Region of 17 July 2006 (see below), the Administration considered the statement, but found no confirmation of the facts set out in the document and found that it was not established that the applicant had had an irresponsible attitude towards her professional duties or lacked adequate knowledge.
On 10 April 2004 the applicant brought defamation proceedings against the Prosecutor’s Office of Grebinkivskyy District, Prosecutor Mr B., Prosecutor’s Office of Poltava Region and the State Treasury of Ukraine, suggesting that the statement contained untrue information relating to her professional activity and that this negative estimation of her attitude to work had damaged her honour, dignity and professional reputation. She asked the court to order the Prosecutor’s Office of Grebinkivskyy District to retract the statement and to pay her compensation for non-pecuniary damage.
On 8 December 2005 the Pyryatynskyy District Court of Poltava Region applied defamation law contained in the Civil Code of 2003, the Prosecutor’s Office Act and the Act on Information, considered the case on the merits and allowed the applicant’s claim in part.
On 17 July 2006 the Court of Appeal of Poltava Region did not challenge the approach of the first-instance court in considering the case under civil law defamation provisions (it however disagreed with the application of the Civil Code of 2003 and applied the old Civil Code of 1963). It partly allowed the claim and increased the sum of compensation for non-pecuniary damage.
On 20 September 2006 the State Treasury of Ukraine appealed to the Supreme Court.
On 6 February 2008 the Supreme Court of Ukraine quashed the above decision and closed the proceedings, finding no jurisdiction. The court mentioned that the Prosecutor’s statement might have been contested before the superior prosecutor or before “a court”. At the same time, the Supreme Court found that, according to Section 4 of Plenum no. 7 of the Supreme Court of Ukraine dated 28 September 1990, “on application of legislation by the courts regulating defence of honour, dignity and reputation of citizens and organisations”, it was not possible to file a civil defamation claim in respect of statements contained in courts’ decisions or decisions of various investigative bodies.
B. Relevant domestic law and practice
At the time of the facts of the case, the Prosecutor’s Office Act provided:
Article 22
“3. The body or an official may contest the order to the superior prosecutor, who shall consider the complaint within ten days, or to a court.”
Article 23
“A prosecutor or his deputy may request a state body, an NGO or the state official, who has this specific authority, to put an end to a violation of the law. The request shall specify the reasons why the prosecutor or his deputy consider that there is a violation of law...”
The Plenum of the Supreme Court of Ukraine no. 7 “on application of legislation by the courts regulating defence of honour, dignity and reputation of citizens and organisations” dated 28 September 1990, provides:
“4. No civil procedure is open in respect of statements contained in verdicts, other court decisions, in decisions of investigative bodies or similar bodies, when the law provides for another procedure.”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention of a violation of her right of access to court.
QUESTIONS TO THE PARTIES
1. What was the legal basis for the Supreme Court’s decision to close the proceedings?
2. Did the restriction of the applicant’s right of access to the court under Article 6 § 1 of the Convention pursue a legitimate aim, and was it proportionate to this aim? In this respect, did the applicant have reasonable means to protect effectively her rights under the Convention, other than a defamation claim against the prosecutor’s office? In particular: does a hierarchical complaint to the superior prosecutor constitute such a reasonable mean; did the applicant have the possibility to file a complaint with “a court”, as indicated by the Supreme court, and if yes, with which court and within which procedure?
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