Communicated on 15 November 2018
FOURTH SECTION
Application no. 42634/18
Nataliia Yuriyivna SEDLETSKA
against Ukraine
lodged on 10 September 2018
STATEMENT OF FACTS
1. The applicant, Ms Nataliia Yuriyivna Sedletska, is a Ukrainian national, who was born in 1987 and lives in Kyiv. She is represented before the Court by Mr S.A. Zayets, a lawyer practising in Irpin.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant is a journalist of the Kyiv Office of the Radio Free Europe/Radio Liberty. She is also the editor-in-chief of the “Schemes: Corruption in details” television programme. The programme has been running since 2014 and many of its issues concern high-ranking prosecutors and politicians.
4. On 25 December 2015 the National Anticorruption Bureau of Ukraine (the NABU) instituted criminal proceedings against prosecutor K. In the framework of those proceedings, in the period between May and July 2016, the NABU tapped Ms N.’s telephone. Ms N. was prosecutor K.’s partner. On 16 July 2016 the results of Ms N.’s telephone tapping were formally documented.
5. Since 14 April 2017 prosecutor K. started working at the General Prosecutor’s Office (the GPO) according to its official website.
6. On 13 November 2017 the Obozrevatel internet media site published an article stating that in the summer of 2017 the Head of the NABU, Mr S., held a closed meeting with some media representatives during which he disclosed confidential information about some ongoing criminal investigations, including the one against prosecutor K. with some details of Ms N.’s private life. The article was accompanied by an audio recording of that meeting and its verbatim.
7. The same day Ms M., a Member of Parliament, wrote to the Prosecutor General about the above publication and breach of secrecy by Mr S.
8. On 15 November Ms N. wrote to the GPO asking to institute criminal proceedings against Mr S. and four of his subordinates for breaching her privacy and making public the materials of the criminal investigation.
9. On 16 November 2017 the GPO instituted criminal proceedings against Mr S. under Articles 163, 182, 328 and 387 of the Criminal Code for violation of privacy and disclosure of confidential information.
10. On 22 November 2017 the GPO requested the Security Service of Ukraine (the SSU) to conduct the voice recognition of those present at the meeting with Mr S. on the basis of the audio recording attached to the article on the Obozrevatel internet media site.
11. On 4 December 2017 the SSU informed the GPO of the results of the voice recognition. It was mentioned that the voices on the recording were likely to belong to Mr S., his deputy Mr U. and two journalists Ms B. and the applicant. Some other voices could not be identified.
12. On 19 December 2017 the applicant was summoned to GPO investigator I. for questioning. She informed the investigator that, as a journalist, she communicated with many representatives of law enforcement, including Mr S. Information received from public events was used in her professional work. As to the information received confidentially, she claimed that under Article 65 of the Code of Criminal Procedure she could not be interviewed as a witness if it would lead to the identification of her journalistic sources. For the same reason she did not answer questions related to the alleged meeting with Mr S.
13. On 27 August 2018 investigator I. submitted to the Kyiv Pecherskyy Local Court (Local Court) a motion to authorise access to the data concerning the applicant’s mobile phone from 19 July 2016 (the date when the results of Ms N.’s phone tapping were formally documented) to 16 November 2017 (the date of the institution of the criminal proceedings against Mr S.) with the mobile service provider JSC ‘Kyivstar’. The requested data included: date, time, duration of each telephone call, the telephone numbers, sent and received text messages (SMS, MMS), and location of the applicant at the time of each call or message. This information was requested in order to establish the exact time and place of the meeting with Mr S.
14. The same day investigating judge P. of the Local Court (the investigating judge) examined the motion of the investigator. With reference to Article 163 of the Code of Criminal Procedure, the investigating judge decided that it could do so without summoning the applicant, as there were sufficient reasons to believe that it might cause the threat of changing or destroying the information sought. By its ruling the investigating judge authorised the collection of data as requested. The ruling was valid for one month.
15. On 1 September 2018 an article on the Court Reporter internet media site stated that the GPO had started checking telephone calls made by [unnamed] journalists who were present at the meeting with Mr S. The site referred to the ruling of the investigating judge of 27 August 2018, and contained a link to an anonymised version of that ruling in the Unified State Register of Court Decisions. The article was accompanied by individual pictures of Mr S. and a number of journalists and human rights activists, including the applicant.
16. By letter dated 4 September 2018, investigator I. informed the mobile service provider JSC ‘Kyivstar’ that it needed only the data about the date, time and location of the mobile phones of the applicant and Ms B. near the six specified streets and places in Kyiv. It was also indicated that this information should be provided without any other data being revealed.
17. On 7 September 2018 the applicant and her lawyer requested the Local Court for a copy of the ruling of 27 August 2018. The request was refused by the Local Court on 10 September 2018.
18. On 11 September 2018 the applicant, notwithstanding the fact that the ruling of 27 August 2018 was not subject to appeal, challenged that ruling before the Kyiv City Court of Appeal (the Court of Appeal) and requested a suspension of the ruling.
19. On 15 September 2015 the Prosecutor General during a public event, having been asked about the data sought from the mobile telephones of the applicant and Ms B., reiterated that he understood well the importance for journalists to protect their sources. He stated, however, that there was a need for minimum interference due to the lack of alternative means to obtain the information about the date when the meeting of Mr S. with journalists took place. He stated that they needed only information from one cell of the mobile network, namely where the NABU was situated. Nevertheless he argued that the period of 16 months was justified. He also stated that he was in principle ready to show the reply from the mobile service provider that he had not claimed or had not received any other data.
20. On 18 September 2018 the Court of Appeal accepted the applicant’s appeal against the ruling of 27 August 2018 on exceptional grounds. The court considered that the investigating judge had not substantiated the ruling and had not complied with the requirements of domestic law in violation of the rights of the applicant. The Court of Appeal considered, however, that the scope of the data requested in the investigator’s letter of 4 September 2018 was not excessive, was necessary to specify the time and place of the investigated offences and would ensure the rights of the applicant as a journalist. Therefore, the Court of Appeal quashed the ruling of the investigating judge and made a new one authorising access to the data about date, time and presence of the applicant’s mobile phone in six specified streets and places in Kyiv during the period from 19 July 2016 to 16 November 2017.
21. On 20 September 2018 the applicant and her lawyer asked the mobile service provider JSC ‘Kyivstar’ and the GPO whether the investigation had access to the data of the applicant’s mobile phone in accordance with the rulings of 27 August and 18 September 2018. Fifteen NGOs and media made a “flashmob” requesting the same information from the GPO. All these requests were refused on the basis of the confidentiality of the pending investigation.
B. Procedure before the Court
22. On 10 September 2018 the applicant submitted to the Court a request for the indication of an interim measure under Rule 39 of the Rules of the Court.
23. On 18 September 2018 the Court indicated to the Government under Rule 39 of the Rules of the Court that, in the interests of the parties and the proper conduct of the proceedings, they should ensure that the public authorities abstain from accessing any data mentioned in the ruling of 27 August 2018 concerning the applicant.
24. On 27 September 2018, being interviewed during his visit to the Parliament, the Prosecutor General stated that no data had been received from the mobile operator, that they complied with the decision of the Court [on indicated interim measure] but that they would need that data to investigate serious crime and would try to explain this to the Court.
25. On 16 October the Court extended the indicated interim measure with respect to the ruling of the Court of Appeal of 18 September until further notice.
C. Relevant domestic law
1. The Constitution of Ukraine
26. Article 34 of the Constitution of Ukraine reads:
“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. Criminal Code
27. The relevant provisions of the Code concern the following offences:
- Article 163: Violation of privacy of mail, telephone conversations, telegraph and other correspondence conveyed by means of communication or via computers;
- Article 182: Violation of personal privacy;
- Article 328: Disclosure of State secrets;
- Article 387: Disclosure of information on pre-trial investigation or inquiry.
3. Code of Criminal Procedure
28. Relevant provisions of the Code provides as follows:
Article 65. Witness
“...
2. The following persons may not be interviewed as witnesses:
...
6) journalists, about confidential information of professional nature provided on condition of nondisclosure of its author or source...”
Article 163. Consideration of the motion for provisional access
to objects and documents
“1. After having received motion for provisional access to objects and documents, investigating judge or court shall summon the person who possesses such objects and documents, with the exception of the case specified in part two of this Article.
2. If the party to criminal proceedings that filed the motion proves the presence of sufficient grounds to believe that a real threat exists of altering or destruction of the objects and documents concerned, the motion may be considered by investigating judge or court without summonsing the person who possesses them...”
4. State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997
29. The Act provides in the relevant parts as follows:
Section 17. Liability for trespass or other actions against the life and health of a journalist and a journalist’s liability for non-pecuniary damage caused by him
“... Professional activities of a journalist shall not serve a ground of his/her arrest and detention, as well as of seizure of the materials which were collected, processed and prepared by him/her and of the technical means that he/she uses in his/her work ...”
COMPLAINTS
The applicant complains under Article 10 of the Convention taken separately and in conjunction with Article 13 about attempts of Ukrainian authorities to interfere with her right to receive information and ideas through access to the data of her mobile phone communications. According to the applicant, such data might enable the authorities to identify her journalistic sources thus putting at risk her journalistic activities. She considered the authorisations for collecting the data in question as requested by the prosecutor and authorised by the courts to be grossly disproportionate given that: the period covered by the authorisation is very long - 16 months, the GPO being a subject of her journalistic investigations and having prosecutor K. in its staff might be biased and interested in identifying her sources, a large number of people within the GPO could potentially have access to the data, there was no analysis by the domestic courts of alternative ways of obtaining necessary information.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s freedom of expression, in particular her right to receive information and ideas and to the protection of her journalistic sources, within the meaning of Article 10 § 1 of the Convention?
If so, was that interference necessary in terms of Article 10 § 2?
2. Did the applicant have at her disposal an effective domestic remedy for her complaint under Article 10, as required by Article 13 of the Convention?
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