FIFTH SECTION
DECISION
Application no. 36106/13
KYYIVSKYY INSTYTUT PROBLEM UPRAVLINNYA IMENI GORSHENINA, TOV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 14 December 2023 as a Committee composed of:
Carlo Ranzoni, President,
Mattias Guyomar,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 36106/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 May 2013 by Kyyivskyy Instytut Problem Upravlinnya Imeni Gorshenina, TOV (“the applicant company”), which was registered in 2005, has its headquarters in Kyiv and was represented by Ms V.F. Krat, a lawyer practising in Kyiv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Acting Agent, Ms Olga Davydchuk, of the Ministry of Justice;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applicant company complained under Article 10 of the Convention about decisions of the domestic courts ordering it to retract information contained in an article it had published. It also complained under Article 6 of the Convention that those court decisions were not sufficiently reasoned.
2. The applicant company owns the website www.lb.ua.
3. In January 2012 the applicant company published an article on that website, the text of which is reproduced below:
“This story is about another influential group of lawyers. The Zh. company, the biggest taxpayer in the Zhytomyr Region, fell victim to these corporate raiders. ... Until recently the company belonged to a foreign investor – Swiss company D. (which owned 95.97% of shares), belonging to US citizens.
However, the Americans do not currently have any influence over the company, because control has passed into other hands. The representative of the board of directors, I.B., (who had been appointed by the American owners), supported by influential individuals, ... has deprived the lawful owners of their company.
The raiders organised a shareholders’ meeting which approved the merger of Zh. with the B. company, which belonged to I.B. [the new company created by the merger was registered under the name of ZH.L.].
It is impossible to explain by normal logic why the biggest taxpayer of the Zhytomyr Region decided to merge with a small enterprise ..., which had more than modest financial results, had no income or employees and did not pay any tax ...
All of Zh.’s assets were subsequently transferred to ZH.L. and, at the same time, the shares of 4,000 shareholders were cancelled, including those of the foreign investor, and I.B. became the new owner of ZH.L. together with ten other people and three offshore companies ... It is not known to whom those companies belong.
However, it is known who helped the raiders and why the authorities ignored the scum (шаманство) who took the shares. When Zh. [unlawfully] ‘escaped’ from its American owners ..., O.T. became an interim director of Zh. ... shares belonging to the foreign shareholders were cancelled by the courts, following complaints made by two minor shareholders. Although those shareholders had registered residence in Zhytomyr and were not his relatives, the address indicated on their application to the court belonged to O.T.
[O.T. is related to] his business partner I.G., who has been working for two years for a company [K.T.] founded by A.P., the head of the Directorate for Judiciary of the President’s Administration ... The new owners of Zh. were represented before the courts by ..., lawyers working for K.T.
It should be noted that the raiders effortlessly obtained a whole package of court decisions allowing them to seize control [of Zh.] Was it a coincidence that a judge of the [court], who had delivered most of the decisions in favour of the raiders, became the president of the [court] a short time later and drove onto the forecourt [of the court] in his new Range Rover?
In addition, it was not only majority shareholders [who fell victim to the raiders], but also minority shareholders who were employees of the company. The raiders forced people to sell their shares or to give them up for free, threatening them with dismissal and violence. The authors [of this article] have video recordings containing the witness statements of those people.
The law-enforcement authorities are not interested in these video recordings, because they also support the raiders. For example, the police prevented the American owner from attending the above-mentioned shareholders’ meeting. Another lawyer employed by K.T. ..., S.P., is currently working for the President’s administration, with responsibility for oversight of law-enforcement bodies.
The new owners of Zh. are also supported by the State Commission for Securities ... This is not surprising given that a sister of T.K., a senior lawyer working for K.T., works at the Commission.”
4. In February 2012 ZH.L. sent a letter to the applicant company stating that the information given in the article was untrue and that the description of the facts was distorted. ZH.L. noted that, on the contrary, it had been the American owner who had been attempting to unlawfully take over the company and criminal proceedings had been opened against him on that account. ZH.L. stated that it was ready to meet representatives of the applicant company and to show them documents which would prove that the information in the article was untrue. The applicant company did not respond to the letter.
5. In March 2012 ZH.L. instituted judicial proceedings against the applicant company, seeking a declaration that the article was untrue. ZH.L. also sought an order obliging the applicant company to publish a retraction, which would mention that the applicant company apologised to the management of ZH.L. and its employees and confirmed that the information in the article was untrue.
6. In its written submissions to the court, the applicant company noted that ZH.L. was not implicated by the article, which referred mainly to Zh., its predecessor. The applicant company also noted that an order obliging a party to apologise for untruthful information was not provided for under Ukrainian legislation. It also stated that the disputed article consisted of value judgments, which were not susceptible of proof.
7. On 4 July 2012 the Shevchenkivskyy Court of Kyiv found in favour of ZH.L. and obliged the applicant company to publish a retraction statement as requested by ZH.L. and to reimburse ZH.L. around 13 euros in court fees. The court relied on Article 277 of the Civil Code, the relevant parts of which read as follows:
Article 277
Retraction of untrue information
“1. An individual whose non-pecuniary rights have been infringed as a result of the dissemination of untrue information about him or her and (or) members of his or her family shall have the right to reply and [the right to] the retraction of that information ...
...
3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.
4. Untrue information shall be retracted by the person who disseminated the information ...
...
6. An individual whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law ...
Untrue information shall be retracted, irrespective of the guilt of the person who disseminated it.
7. Untrue information shall be retracted in the same manner in which it was disseminated.”
8. In its decision of 4 July 2012 the court noted:
“Having regard to the factual circumstances of the case and the relevant legislative provisions, the court concludes that [the disputed information] is negative [as it contains statements accusing the claimant of having violated various laws]; in this manner [the disputed information] denigrates [the claimant’s] reputation and violates its ... non‑pecuniary rights established by law ...
The fact that the [disputed] information is untrue is confirmed by [a number of] decisions of the Higher Commercial Court of Ukraine, ... which found that all the [financial operations concerning Zh.] were legal. This was not disputed by the respondents ... Moreover, [the disputed article does not contain any reference to] other reliable sources from which the [authors] received the disputed information. Because of this [the truthfulness of the disputed information] cannot be verified ... [In the article the authors] also do not refer to other material published in other media [as a source of the information contained in the article] ... At the same time the respondents did not provide any evidence that the disputed information was true.”
9. The court ordered the applicant company to publish in one of its forthcoming issues the following retraction statement suggested to the court by ZH.L:
“On 24 January 2012 the website www.lb.ua published [the disputed article]. This article contained information which concerned the reorganisation of ZH.L, the successor of Zh. [The article also provided information concerning] distribution of shares ... and contained opinions concerning actions of State authorities and certain individuals. The editorial board of lb.ua kindly asks the management and the employees of ZH.L. to accept its apologies and states that the [disputed information] is untrue.”
10. The applicant company appealed. It stated that the article did not implicate ZH.L., but mainly Zh. The applicant company further noted that the first-instance court had ordered it to retract the entire article, even though some of the information contained within it was plainly true – in particular, information about various people’s places of work and the fact that property had been transferred from Zh. to ZH.L. The applicant company again argued that the article consisted of value judgments.
11. On 23 October 2012 the Kyiv Court of Appeal upheld the first‑instance court’s judgment. The court noted that the national legislation contained a presumption of untruthfulness of negative information (see para. 7 above). It was incumbent on a person who disseminated such information to prove its accuracy. The court of appeal further reiterated and endorsed the reasoning of the first-instance court.
12. On 19 February 2013 the Higher Specialised Court agreed with the reasoning of the lower courts and upheld their decisions. It pointed out that the first-instance court had not obliged the applicant company to apologise to the claimant. It had only ordered the applicant to publish a retraction statement (see paragraph 9 above).
13. The applicant company complained under Article 6 of the Convention that the courts had not justified their decisions. It complained under Article 10 of the Convention that its right to freedom of expression had been violated.
THE COURT’S ASSESSMENT
14. The Government submitted that the courts’ decisions had had a basis in law and that the applicant company had not proved the information which it had published. Consequently, there had been no interference with its rights under Article 10 of the Convention. The Government did not submit any observations on the admissibility of the complaint under Article 6 of the Convention but noted that there had been no violation of that provision. The applicant company maintained its complaints.
15. The Court considers that the decisions of the domestic courts constituted an interference with the applicant company’s rights under Article 10 of the Convention. The Court accepts that the courts’ decisions had a basis in law (Article 277 of the Civil Code – see paragraph 7 above), and pursued a legitimate aim, namely the protection of rights of others. It remains to be examined whether the interference was necessary in a democratic society.
16. The Court notes that the disputed statements constituted statements of fact and not value judgments as the applicant company asserted. The article clearly stated that the Zh. company, later renamed ZH.L., had been unlawfully transferred from one owner to another (see paragraph 3 above).
17. The Court observes that the domestic courts applied standards which were in conformity with the principles embodied in Article 10. Moreover, the courts relied on an acceptable assessment of the relevant facts (see Halet v. Luxembourg [GC], no. 21884/18, § 110, 14 February 2023, with further reference). In particular, the courts established that the applicant company did not present sufficient evidence to support the statements of fact contained in the disputed article (see Barata Monteiro da Costa Nogueira and Patrício Pereira v. Portugal, no. 4035/08, § 38, 11 January 2011).
18. The Court also points out that no sanctions were imposed on the applicant company for publishing the disputed information.
19. In such circumstances the Court finds no reason to substitute its own view for that of the domestic courts and concludes that the complaint under Article 10 must be declared inadmissible as manifestly ill-founded.
20. In the light of this finding, the Court considers that the complaint under Article 6 of the Convention does not require a separate examination.
21. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 January 2024.
Martina Keller Carlo Ranzoni
Deputy Registrar President