Communicated on 3 March 2014
FIFTH SECTION
Application no. 41752/09
Aurika Aleksandrovna GORYAYNOVA
against Ukraine
lodged on 26 July 2009
STATEMENT OF FACTS
The applicant, Ms Aurika Aleksandrovna Goryaynova, is a Ukrainian national, who was born in 1970 and lives in Odessa, Ukraine.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant was a prosecutor.
On 15 March 2007 she published an open letter to the Prosecutor General of Ukraine on an Internet site. The letter reads as follows:
“I see no other way to draw your attention to the problems of ordinary people but through the mass media.
Recently the prosecutors’ offices have changed from being “the Eye of a Monarch” to “a pocket with a hole”: whatever you put into – it is never enough. There are less and less intellectuals and professionals in the prosecutors’ offices, who go by law. Instead there are those who bought their posts and “earn back” the money spent.
It is now shameful to look into the face of ordinary citizens of Ukraine since our law-protection system commands a sad smile and a pity.
Under your leadership unlawfulness in the prosecutors’ offices became wide-spread. The prosecutors’ offices became commercial structures aimed at collecting money and the administration tries to throw on the street those who do not wish to do so because of their professional and human qualities.
Complaints lodged before you are, in breach of the Citizens’ Appeals Act, forwarded to those persons against whom they are aimed. And the latter prosecute the disobedient.
In support [of my words] I will provide examples from the department I work in.”
The applicant proceeded with a short explanation that the department she worked in was reorganised in 2006 and new superior officers were appointed.
“With the change of the administration the priorities in the departments’ work were also changed. To earn money became one of the main aims. It was openly said at the meetings that the department should work in such a way that [people] come to us with “bags”, money, “carts” ...
But the representation of the interests of those citizens who are unable to protect their breached rights and the representation of the State cannot be “profitable”. Those people, who worked [in the department] before [its] reorganisation, had no idea how to function in accordance with the new priorities of the administration. Then [they] started to oppress the employees.
Given that all experienced employees of the “representation department” changed their working places after the reorganization, the main pressure was exercised on them under a vain pretext.
Moreover, N., who returned to the prosecutor’s office after retirement and surprisingly became the head of the department (her own explanation was that she has family relations with the Minister of Internal Affairs), decided for some unknown reason that the subordinates disliked her and stated that she would replace everybody in case of disobedience.
Every employee was warned that he would be subjected to a special method of influence: for example, the husband could have difficulties in his business affairs; somebody could have his reputation ruined so it would be impossible to find another job in Odessa...
However, it did not produce the desired result: the money did not flow like a river. And the pressure continued.
They started to check all previous cases, to advance claims towards executioners who just carried out in good faith the decisions of the previous administration.
Finally the administration found another way to reach its goal: if it is impossible to receive a tribute from those whose interests are to be protected by the prosecutor’s, the deal should be made with the opposite party. And it is very easy to do, given that N. has worked as an advocate for a long time. Her clients can pay for the services – contrary to those whose interests the prosecutor’s office is called to protect in a court hearing.
The result of the new policy arrived quickly: the mass removal of the prosecutors from the cases started despite the fact that the decision on participation was lawfully taken by the previous administration and a prosecutor had already participated in proceedings.
If the concerned prosecutor insisted on his position and did not wish to withdraw from the case, [his removal] was done without informing him, by a letter to the court signed by the deputy regional prosecutor, M.
A similar situation exists with the protection of the State’s interests in the court.
Experienced, professional prosecutors are threatened and instructed that they should not even think about expressing their own point of view.
All this produced an immediate result: the staff ran away. Those who had already a right to a pension were lucky, but what should the others do?
New employees do not understand what and why they are doing since from now on the activity of the department is very far away from classical representation of the interests of the citizens and of the State in the courts. The amount of work was reduced since now there is a random selection of whose interests to protect. The work turned into burocratic re-arranging of unnecessary papers and the quality of work worsened.
All of the department’s activity is limited to a permanent pressure on district prosecutors (you should produce numbers!) and it is beautifully named – “work in a zone”. In reality additional numbers are mostly made up.
In order to justify the existence of the department, its head forces the district prosecutors to produce the numbers for two months of the current year identical to those for three months of the last year. And nobody asks: who needs these numbers if people’s rights are unprotected. The quality of work in the courts is beyond any attention. As a result the prosecutors’ offices are mocked at since in order to get the numbers they lodge such claims which the parties to the proceedings laugh at even when they have no law school diploma.
I cannot judge what you know about problems of simple employees of prosecutors’ offices who decently work for the Motherland in places far from Kyiv. However, I feel the prejudice of the representatives of the General Prosecutor’s Office who were supposed to check my complaints about a breach of my rights. Having arrived in order to check the facts presented by me, they made a stand for your tranquility and protection of those about whom I am complaining. Since there is no possibility to get the word of truth across to the administration of the General Prosecutor’s Office, I am forced to protect my rights myself in the courts. But I am not the first one and not the only one – there are a lot of [similar persons]. We can now talk about existence of a true court practice on restitution of breached rights of employees of the prosecutors’ offices.”
On 21 and 26 March 2007 two more articles were published by the applicant on the same Internet site. The first one concerned a police officer G. The applicant was to participate in court proceedings against G. for housing fraud. G. had been represented by lawyers from the same advocates union as the applicant’s current head of department belonged to. The applicant also alleged that the inspection from the General Prosecutor’s Office following her complaints was superficial. The second one concerned an alleged attempt to institute criminal proceedings against the applicant. She also accused a certain prosecutor P. of corruption and power abuse.
On 3 April 2007 a disciplinary sanction against the applicant was adopted by the Odessa Regional Prosecutor’s Office. It was mentioned that the applicant had published an open letter to the Prosecutor General on 15 March 2007. In this letter she accused the administration of the department where she worked of corruption and abuse of power, however, she did not provide any particular facts either in her open letter, or in her explanatory note. Following a review, a decision not to institute criminal proceedings following the applicant’s allegations was adopted on 22 March 2007. The applicant “for no good reason spread unfounded, wrong and insulting statements about the employees of the prosecutor’s office”. Moreover, following a complaint of a certain Z. it was established that the applicant had a personal interest in a certain civil case. The applicant “showed insincerity and behaved not self-critically”. Moreover, on 21 March 2007 she published further libel materials and sent further letters of various prosecutors commenting allegedly unlawful actions of her superiors in investigation of her complaints. The applicant was dismissed from her position under the Disciplinary Statue of the Prosecutor’s Service.
On 4 April 2007 the General Prosecutor’s Office informed the applicant that investigation into her complaints was pending. On the same date the applicant challenged her dismissal in court.
Between 5 and 25 April 2007 three more articles were published by the applicant including the text of her dismissal order and her comments on her dismissal.
On 29 May 2008 the Prymorskyy District Court of Odessa found in part for the applicant. Referring to Article 10 of the Convention the court found that the applicant’s open letters were critical remarks in respect of the administration of the Odessa Regional Prosecutor’s Office. As for her personal involvement in a civil case, the applicant had been already sanctioned for it. The court ordered the applicant’s reinstatement and awarded her compensation for pecuniary and non-pecuniary damage.
On 25 February 2009 the Odessa Regional Court of Appeal quashed this decision and found against the applicant. The court referred to the publications of 15 and 21 March 2007 and noted that “it had been correctly established that the applicant “for no good reason spread unfounded, wrong and insulting statements about the employees of the prosecutor’s office”.
On 27 April 2010 the Higher Administrative Court of Ukraine upheld the decision of 25 February 2009. The court held that the first instance court’s reference to Article 10 of the Convention was irrelevant since the applicant was a public servant.
COMPLAINTS
The applicant complains, invoking Article 10 of the Convention, that she was prosecuted for her open letter to the Prosecutor General of Ukraine.
QUESTIONS TO THE PARTIES
1. Did the applicant’s dismissal from work on account of her statements to the press and the subsequent refusal of the domestic courts to reinstate her amount to a violation of her right to freedom of expression, contrary to Article 10 of the Convention (see Guja v. Moldova [GC], no. 14277/04, ECHR 2008)?
2. In particular, to what extent are the duties and responsibilities inherent in the applicant’s role as a public prosecutor relevant to her claim and the State’s margin of appreciation in this field?
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