FIFTH SECTION
DECISION
Application no. 76594/13
Volodymyr Ivanovych VYSOTSKYY
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 17 November 2022 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. 76594/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 November 2013 by a Ukrainian national, Mr Volodymyr Ivanovych Vysotskyy (“the applicant”), who was born in 1960 and lives in Kyiv and who was represented by Mr S. Zayets, a lawyer practising in Irpin;
the decision to give notice of the complaints under Articles 8 and 10 of the Convention to the Ukrainian Government (“the Government”), represented by their acting Agent, Ms O. Davydchuk, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns complaints under Articles 8 and 10 of the Convention in relation to the applicant’s disbarment, which he considered had been a form of a punishment for expression of his opinion.
2. On 26 November 2012, in a separate ruling delivered in defamation proceedings initiated by the applicant, who was at that time the Head of the Higher Qualification Commission of the Bar of the Cabinet of Ministers of Ukraine (“the Commission”) and a member of the High Council of Justice, against three lawyers, N., F., and M., the Uzhgorod Town Court noted that it had been revealed during the examination of the case that the applicant had unlawfully interfered with Bar self-governance by, inter alia, publishing on the Commission’s official website an article in which he called on lawyers to disobey decisions of qualification and disciplinary commissions concerning constituent conferences of lawyers in the regions, to disregard court decisions delivered in this respect and to hold alternative constituent conferences of lawyers. In the same ruling the court ordered the Higher Qualification and Disciplinary Commission of the Bar (“the HQDCB”) to examine the applicant’s actions at one of its meetings. Appeals by the applicant against the separate ruling of 26 November 2012 were rejected by higher courts.
3. On 21 January 2013, in defamation proceedings initiated by the lawyers N., F., and M. against the applicant, the Pecherskyy District Court of Kyiv delivered a separate ruling similar to the one delivered by the Uzhgorod Town Court on 26 November 2012 (see paragraph 2 above) and in respect of the same breaches of the law allegedly committed by the applicant. On 30 May 2013 the Kyiv Court of Appeal quashed the separate ruling of 21 January 2013, finding that no breaches of the law had been committed by the applicant since he had published the impugned article in his official capacity and had not used the Commission’s website for his own interests. On 25 June 2013 the Higher Specialised Civil and Criminal Court rejected a request by the claimants for leave to lodge a cassation appeal.
4. In the meantime, on 18 February 2013, following a request from the HQDCB, the disciplinary board of the Kyiv Regional Qualification Commission of the Bar (“the Kyiv Commission”) instituted disciplinary proceedings against the applicant. The decision on disciplinary proceedings was based, inter alia, on the above-mentioned separate rulings of 26 November 2012 and 21 January 2013, as well as complaints by N., F., and M. against the applicant. On 5 April 2013 the disciplinary board of the Kyiv Commission decided that the applicant should be disbarred as he had breached his professional oath and had persistently failed to comply with the rules of professional conduct. On 24 April 2013 the Kyiv Commission approved the decision of its disciplinary board and ordered the applicant’s disbarment.
5. On 17 February 2014 the Sevastopol Administrative Court of Appeal (“the Court of Appeal”) set aside as unlawful and unsubstantiated the above‑mentioned decisions of 18 February 2013 and 5 and 24 April 2013. It found, inter alia, that the Kyiv Commission had had no powers to conduct disciplinary proceedings against the applicant and that the HQDCB had acted in breach of the law in sending the material in respect of the applicant to the Kyiv Commission instead of the regional qualification commission in Sevastopol, where the applicant was registered as a lawyer. The Court of Appeal also found that the separate ruling of 26 November 2012 had not been of a prejudicial character as it had only “revealed” but not “established” violations and that all allegations against the applicant should have been properly examined by a competent disciplinary body. It went on to note that the allegations at issue had been examined by the Kyiv City Court of Appeal, which had established in its final decision of 30 May 2013 that the applicant had not breached the law by publishing the impugned article on the Commission’s website. It further found that there had been no evidence suggesting that the article itself contained any call to disobey court decisions and that the applicant’s interpretation of the procedure for holding lawyers’ conferences in regions differed from the Commission’s decision taken on the matter; the applicant’s call for an “alternative” conference of lawyers to be held did not constitute a disciplinary offence. Lastly, the Court of Appeal found that no admissible evidence had been available in the file to support the other allegations which had served as basis for the decision on the applicant’s disbarment.
6. On the same date, 17 February 2014, the applicant’s licence to practise as a lawyer was renewed and the appropriate record about his reinstatement in the Bar was entered into the Unified Register of Lawyers (“the Register”).
7. On 20 June 2017 the Higher Administrative Court closed the cassation proceedings in the case, finding that it was impossible to examine the cassation appeals lodged by the defendants against the judgment of 17 February 2014 as the case file had been destroyed. The restoration of the file had been ordered. No information has been provided by the parties on whether there have been any further developments in the case.
THE COURT’S ASSESSMENT
8. The applicant essentially complained under Articles 8 and 10 of the Convention that his disbarment had been a form of a punishment for the expression of his opinion and had amounted to a breach of his right to respect for private life and his freedom of expression. In his observations in reply to those of the Government, the applicant also raised a new complaint that the failure to delete the record of his disbarment from the history of his profile in the Register had constituted a violation of his rights under Article 8 of the Convention.
9. The Government submitted that the applicant could no longer claim to be a victim of a violation of his rights under Articles 8 and 10 of the Convention since the decision on his disbarment had eventually been declared unlawful and set aside. Furthermore, the applicant had failed to pursue an available domestic remedy in respect of his complaint in that he had not claimed compensation from the domestic courts for the alleged violations of his rights despite being entitled to do so by virtue of Articles 23 and 1167 of the Civil Code, which provided that a person whose rights had been breached had the right to compensation for non-pecuniary damage and that compensation for damage caused by unlawful decisions, actions or omissions was to be provided by those who had caused it.
10. The applicant argued that he was still a victim of a violation under Articles 8 and 10 since no compensation for the unlawful disbarment had been provided to him and because information on his disbarment had not been deleted from the Register, creating an impression for the outside world that he had been a bad lawyer.
11. The Court reiterates that an applicant’s status as a “victim” within the meaning of Article 34 of the Convention depends on whether the domestic authorities have acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when those conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Zoltán Varga v. Slovakia, nos. 58361/12 and 2 others, § 108, 20 July 2021).
12. The Court notes in this connection that on 17 February 2014 the Court of Appeal, in a well-reasoned decision, set aside all decisions of the Kyiv Commission in respect of the applicant, including on his disbarment, finding that the disbarment had been unlawful and unsubstantiated, both procedurally and in substance (see paragraph 5 above). The judgment of the Court of Appeal was adopted with immediate effect, and the applicant had his Bar licence restored on the same date with the relevant entry being made in the official records. Therefore, the breaches complained of by the applicant had been expressly acknowledged by the authorities.
13. It is true that the applicant was awarded no compensation for the damage caused to him by the unlawful disbarment. However, the Court notes that it has not been suggested by the applicant that he had ever claimed such compensation before the domestic courts. He also did not claim in his reply to the Government’s observations that he had been prevented from lodging such an action for any reason; he provided no comments at all on the matter.
14. Likewise, even assuming that the applicant’s argument relating to the authorities’ failure to delete the record of his disbarment from the Register is relevant to his victim status, there is nothing in the case file to suggest that the applicant had brought that issue to the attention of the domestic authorities. In addition, the applicant has not shown that he had suffered any sufficiently serious negative consequences or difficulties resulting from the fact that the record of his disbarment remained visible in his profile in the Register, such as, for examples loss of clients, etc. (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, § 131, 25 September 2018).
15. In these circumstances, the Court considers that the acknowledgment of the unlawfulness of the applicant’s disbarment and restoration of his licence to practise as a lawyer constituted, in itself, appropriate and sufficient redress for the purposes of Article 34 of the Convention.
16. Accordingly, the applicant can no longer claim to be a victim and this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4 of the Convention.
17. To the extent that the applicant alleged that the failure to delete the record of his disbarment from the Register in itself constituted an interference with his right to reputation under Article 8 of the Convention, this complaint has been raised by the applicant before the Court only in 2021, in his reply to the Government’s observations, while his Bar licence had been restored and his personal records amended already in 2014. The Court cannot but also note in this respect that the applicant informed the Court about the restoration of his Bar licence only in 2020, in his reply to the Court’s request on the matter. In any event, even assuming that this complaint can be seen as an elaboration on his original complaint about his disbarment, the Court reiterates that there is nothing to suggest that the applicant has ever raised that matter before the domestic authorities. He also provided no example to this Court as to how his life had been affected by the fact that the information on his disbarment remained visible in the Register.
18. It follows that this complaint is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 8 December 2022.
Martina Keller Carlo Ranzoni
Deputy Registrar President