FIFTH SECTION
DECISION
Application no. 8369/12
Igor Petrovych POCHYNOK and DRUK MEDIA PLUS, 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. 8369/12) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 February 2012 by a Ukrainian national, Mr Igor Petrovych Pochynok, and a limited liability company based in Lviv, Druk Media Plus, TOV (“the applicants”), who were represented by Mr O.O. Malyarchuk, a lawyer practising in Lviv;
the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Mr Ivan Lyshchyna, of the Ministry of Justice;
the applicants’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the applicants’ complaints that they were ordered to retract certain statements which they published in a newspaper article (Articles 6 and 10 of the Convention).
2. The first applicant, Mr Pochynok, was the editor-in-chief of the Express newspaper. The second applicant was a legal person and a founder and owner of the Express.
3. On an unspecified date in 2009 Ukrzalizpostach (hereinafter “UZP”), a State-owned company subordinate to the Ukrainian Railway Company (hereinafter “the URC”), also a State-owned company, published two invitations to tender for the procurement of various railway equipment. Tender notice no. 32450 included three lots of a total value of 651,983,000 Ukrainian hryvnas (UAH) (approximately 56,024,800 euros (EUR)). Tender notice no. 33574 included one lot of a total value of UAH 232,861,000 (approximately EUR 19,705,200).
4. On 31 December 2009 and 15 January 2010 respectively, UZP announced that the private company Corporation KRT had won both tenders. At the time when Corporation KRT applied for the tenders and won them, it was owned by Mr Yaroslav Dubynevych and his brother Mr Bogdan Dubynevych, who each held 50% of the company’s shares. Mr Yaroslav Dubynevych was a representative of the URC to the Secretariat of the Parliament of Ukraine in 2008-2011 and a member of the “Yuliya Tymoshenko Bloc”, a political party whose founder and leader, Ms Tymoshenko, was the prime minister of Ukraine from 2007 to 2010. Mr Bogdan Dubynevych was an active member of the same political party.
5. The results of the tender procedure were not challenged and UZP concluded commercial contracts with Corporation KRT for the purchase of the equipment mentioned in the tender notices.
6. In April 2010 the first applicant wrote and published in the Express newspaper an article alleging that the director of the URC, Mr Mykhaylo Kostyuk, had helped Corporation KRT to win the tenders because he was on good terms with its owners. The first applicant also mentioned that the owners of Corporation KRT were involved in unlawful operations involving the URC and other State companies and that the money obtained from these operations was used to fund the participation of Yuliya Tymoshenko in the presidential elections of 2010.
7. The article contained the following text:
[In 2009-2010 UZP published several invitations to tender, inviting bids to supply various railway equipment. Corporation KRT won with a bid of 885 000 000 Ukrainian Hryvnas (approximately 76 000 000 Euros). In February 2008 Mykhaylo Kostyuk became the head of the URC.] In June 2009 [he] said: “Can I genuinely say whose man I am? Of course I can. I am a man of the person in this portrait”. So whose portrait did Mykhaylo Kostyuk point to? Georgiy Mykhaylovych Kirpa’s [a previous head of the URC who had died in 2004]. [...] Let us carefully examine who was behind the mysterious Corporation KRT, which had so easily won tenders for hundreds of millions of hryvnas. This company had been founded in 2003, and after some time Yaroslav Dubynevych became its president. [...] After a short time, via some “useful people”, Dubynevych established contact with URC and started this railway business, which began to flourish when Dubynevych met the then director of the URC, Georgiy Kirpa. [...] So when we talk about Kostyuk and Dubynevych, we should understand that they have a common denominator. The name of this denominator is Georgiy Kirpa. [...] let us briefly describe some of the documents which prove that Kirpa, Kostyuk and Dubynevych had common interests. Those documents were patents. There are several of those patents where Kirpa, Kostyuk and Dubynevych are named as the inventors. [...] Why were those three very different persons brought together by these patents? As informed sources are saying, this scheme was originally suggested by Georgiy [Kirpa]. Kostyuk and Dubynevych continued jointly registering patents in their names up until 2009 [...]. Even after Mykhaylo Kostyuk took over from Kirpa [as the director of URC] he had time to continue filing applications for patents together with Dubynevych [...]. Given that most of those patents were owned by Corporation KRT and both Kostyuk and Dubynevych are named as the inventors, one can clearly see the logic according to which the procurement policy of the State monopoly [URC] was developing.
8. The article also contained the following six statements:
Statement 1
“Ukrzalizpostach is directly controlled by the head of the Ukrainian Railway Company [Mr Kostyuk].”
Statement 2
“After Kostyuk was appointed as head of [the URC], the companies belonging to [Bogdan and Yaroslav] Dubynevych started to actively win tenders issued by [the URC].”
Statement 3
“Just a few operations carried out by companies belonging to the Dubynevych [brothers] with [the URC] during recent months raised the amount of almost 2 billion hryvnias.”
Statement 4
“... it would be interesting to know whether Yu. Tymoshenko was aware of these scams when she was sitting in the chair of the Prime Minister?”
Statement 5
“It can even be assumed that there was a scheme, according to which Kirpa [the head of the URC before 2004] set an objective, Kostyuk carried out operational work on behalf of the railways and Dubynevych provided the rest. In general.”
Statement 6
“... indeed this link is dubious because not all the people are poor. Especially those whose companies, as it is fashionable to say, ‘cooperate’ with the railway.”
9. The URC instituted proceedings in the Frankivskyy District Court of Lviv against both applicants, seeking to oblige them to retract the six statements set out above. The URC asserted that those statements were untrue and damaging to its reputation.
10. By a decision of 23 September 2010, the court established that the statements were false and damaged the reputation of the URC and ordered the applicants to retract the statements in the Express newspaper. No other sanctions were imposed on the applicants.
11. As regards the first statement, the court drew the following conclusion:
“From the aforementioned legislative provisions and the explanations given by the defendant, it follows that, according to the legislation, Ukrzalizpostach is subordinate to the Ukrainian Railway Company, and the defendant’s statement that Ukrzalizpostach is directly controlled by the head of the Ukrainian Railway Company is false”.
12. The court further found that the second and third statements were false and adversely affected the reputation of the URC because all the tenders had been carried out in accordance with the relevant legislation and their results had not been appealed against and had not been found unlawful by the competent bodies.
13. As regards the fourth statement, the court found it to be false because the applicants had called the tenders “scams” without providing any evidence that those transactions were illegal.
14. The court found the fifth and sixth statements to be false because the applicants had not provided any evidence that the three persons mentioned in the statements were interrelated or that URC had been involved in any unlawful activities.
15. On 26 May 2011 the Lviv Regional Court of Appeal upheld the decision of the first-instance court.
16. On 26 August 2011 the Higher Specialised Court of Ukraine rejected the applicants’ request for leave to lodge a cassation appeal as being unsubstantiated.
17. The applicants complained, relying on Article 10 of the Convention, that the courts had ordered them to retract the statements set out above. The applicants also complained, relying on Article 6 of the Convention, that the courts had found against them.
THE COURT’S ASSESSMENT
18. The applicants maintained their complaints. The Government’s observations were not included in the case file as they had been lodged outside the prescribed time-limit.
19. The general principles applicable in the present case are summarised in Axel Springer AG v. Germany [GC], no. 39954/08, §§ 84 and 88, 7 February 2012.
20. The Court considers that the decisions of the domestic courts in the applicants’ case constituted an interference with their rights under Article 10 of the Convention. The Court has no reason to doubt that this interference was based on the relevant domestic law and pursued a legitimate aim, namely, the protection of rights of others. The Court recalls that it may be necessary to protect public servants from offensive, abusive and defamatory attacks which are calculated to affect them in the performance of their duties and to damage public confidence in them and the office they hold (see Janowski v. Poland [GC], no. 25716/94, § 33, ECHR 1999-I). In the present case the court decisions were aimed at protecting the reputation of the URC, a State-owned company, against statements which could undermine public confidence in it. It remains to be examined whether the interference was necessary in a democratic society.
21. The Court observes that no sanctions were imposed on the applicants for publishing the six statements alleging that two State-owned companies, UZP and URC, were involved in corrupt practices. The applicants were solely obliged to retract those statements.
22. The Court further notes that the same message concerning UZP and URC was conveyed by the applicants in the part of the article which had not been disputed in the domestic proceedings (see paragraph 7 above).
23. Accordingly, although the applicants were ordered to retract a part of the article, they were still able to impart the information of public interest.
24. The Court observes that the domestic courts applied standards which were in conformity with the principles embodied in Article 10 and that, moreover, they 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, they took into account the fact that the applicants did not present any evidence that the activities of the State companies were illegal.
25. 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. In the light of this finding, the Court considers that the complaint under Article 6 of the Convention does not require a separate examination.
26. It follows that the application must be rejected as manifestly ill‑founded 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