FIFTH SECTION      CASE OF LYKIN v. UKRAINE (Application no. 19382/08)       JUDGMENT      STRASBOURG 12 January 2017  FINAL 12/04/2017 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Lykin v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Angelika Nußberger, President, Khanlar Hajiyev, Ganna Yudkivska, André Potocki, Yonko Grozev, Síofra O’Leary, Mārtiņš Mits, judges, and Milan Blaško, Deputy Section Registrar,Having deliberated in private on 29 November 2016,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 19382/08) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Vladimir Viktorovich Lykin (“the applicant”), on 8 April 2008.2. The applicant was represented by Mr V. Filipenko, a lawyer practising in Donetsk. The Ukrainian Government (“the Government”) were represented by their Agents, most recently, by Mr I. Lishchyna.3. The applicant alleged, in particular, that by finding against him in defamation proceedings, the domestic courts had unlawfully and unfairly curtailed his right to freedom of expression.4. On 6 May 2013 the application was communicated to the Government.THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1953 and lives in Molodetske, in the Donetsk Region.6. On 28 January 2007 the applicant, at the material time a member of the Shakhtarsk District Council and president of the local branch of the Party of Regions, read out a letter at a meeting attended by over forty party members and inhabitants of the village of Zolotarevka which contained the following text:“To the Member of the Shakhtarsk District Council, President of the district branch of the Party of Regions, Mr Lykin V.V., from the inhabitants of the village of Zolotarevka ...We, the inhabitants of Zolotarevka ... appeal to you with indignation concerning the election and performance of the Deputy President of the Shaktarsk District Executive Committee, Mr G. Sh. [full name given]....He is a grabber and a petty tyrant. How can he serve the district after having destroyed all the work in Zolotarevka during his four years in office? He had no formal audiences, took decisions unilaterally, and was rude and impolite. He came to work in the morning, but then hid in his illegal firms in Makeyevka or in the computer centre in Kharsyzk, while continuing to receive his salary and bonuses. Funds were allocated for renovation of the water supply system, but he did not manage them ... All the village ... was drowning in weeds and rubbish ... No discussion about petty things, we want to know specifically why [G.Sh.] should get away with the following:(1).  [he] collected 30 hryvnias per household [for renovation of the water supply system] on Sh. and P. streets, and what did he spent it on?(2).  [he] removed all the metal parts from the boiler room in the kindergarten ... ;(3).  [he] uncovered and removed 400 metres of water pipes;(4).  with his knowledge, the century-old oak trees in the forest have been felled.We request your support ... All who voted for the [Party of] Regions, that is 95% [of the voters] are disgusted, and demand [G.Sh.]’s resignation from the district council. He should be expelled from the Party of Regions.”7. This text was followed by eleven signatures, with no indication of full names.8. After having read out the letter, the applicant expressed his personal dissatisfaction with G.Sh.’s performance as a party activist and an elected public official, and was joined in this by several other participants. Mrs A. stated that she was one of the authors of the letter, and that she agreed with all the allegations contained in it.9. G.Sh. was given the floor and argued that the allegations against him were defamatory and lacked any evidential basis.10. In February 2007 G.Sh. instituted civil proceedings in the Shakhtarsk Court, seeking non-pecuniary damages from the applicant for having disseminated defamatory information about him. He maintained in particular that the applicant had had no right to read out the letter, which had contained unverified defamatory information accusing him of criminal and corrupt conduct. As the purported authors of the letter had signed it without indicating their full names or address details, it should have been disposed of without any follow-up as an anonymous application within the meaning of the Citizens’ Applications Act. G.Sh. also submitted that the applicant had given him a photocopy of the disputed letter before the Zolotarevka meeting, and had warned him about his intention to read it out. G.Sh. had protested on the grounds that the text was defamatory, yet the applicant had disregarded his opinion.11. On 17 September 2007 the Shaktarsk Court declared that the applicant had been at fault in defaming G.Sh., and awarded the latter 200 Ukrainian hryvnias (UAH) in respect of non-pecuniary damage. In particular, the court found that the letter should have been treated as an anonymous application by citizens within the meaning of section 5 of the Citizens’ Applications Act. Instead of not pursuing the allegations in the letter, the applicant had acted unlawfully in making it public without verifying the serious accusations against G.Sh. which it contained.12. The applicant, represented by Mr V. Filipenko, appealed. He argued that the Citizens’ Applications Act was not applicable to the facts of the case. In particular, reading out and discussing the content of a letter from voters at a political party gathering could not be deemed an official follow‑up in respect of an anonymous application by citizens within the meaning of the above instrument. Moreover, the letter was not “anonymous”, given that Mrs A. at least had claimed authorship. As regards the nature of the letter, it contained no false allegations of fact. In particular, G.Sh. himself had confirmed that UAH 30 per household had been collected for the renovation of the water supply conduit, and that the boiler-room equipment in the kindergarten had been dismantled upon his orders. There was also evidence in support of other factual allegations. Critical assessment of those facts by some village inhabitants was not susceptible of proof and constituted reasonable value judgments on their part, for which the applicant could not be held responsible. In addition, G.Sh. should have been tolerant of the criticism, as it related to his performance as an elected public official.13. On 3 December 2007 the Donetsk Regional Court of Appeal upheld the judgment of the Shaktarsk Court. It found that the court had rightly concluded that the letter had been anonymous, as it was not possible to identify the authors from the signatures contained therein, and that it had been addressed to the applicant as a public official rather than a private individual, hence the Citizens’ Applications Act had been properly applied. Furthermore, the trial court had rightly concluded that the applicant had not verified the accuracy of the accusations contained in the letter as required by Article 302 of the Civil Code of Ukraine, and had therefore been liable for disseminating defamatory statements against G.Sh.14. On 30 January 2008 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation.II. RELEVANT DOMESTIC LAWA. The Constitution of Ukraine15. 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.”B.  2003 Civil Code of Ukraine16. The relevant provisions of the Civil Code of Ukraine, as worded at the material time, read:Article 277. Retraction of inaccurate information“...3. Negative information about a person which is disseminated shall be considered inaccurate unless the person who disseminated it proves otherwise ...”Article 297. Right to respect for one’s dignity and honour“1. Everyone shall have the right to respect for his or her dignity and honour.2. The dignity and honour of an individual shall be inviolable.3. An individual shall have the right to apply to a court with a claim to defend his or her dignity and honour.”Article 299. Right to the inviolability of one’s professional reputation“1. An individual shall have the right to the inviolability of his or her professional reputation.2. An individual shall have the right to apply to a court with a claim to defend his or her professional reputation.”Article 302. Right to information“...2. An individual disseminating information shall be obliged to verify its accuracy. ...”C. Law of Ukraine no. 393/96-VR of 2 October 1996 on applications by citizens (the Citizens’ Applications Act)17. The applicable provisions of the above Act, as formulated at the material time, read:Section 5. Elements of an application“Applications shall be addressed to bodies of State power and local government, enterprises, institutions, organisations regardless of their form of ownership, or associations of citizens or officials competent to deal with the matters raised in the applications.An application must indicate the full name [and] residential address of the citizen, describe the substance of the matter raised, and [contain] comments, proposals, declarations or complaints, requests or demands....An application may be filed by an individual (an individual [application]) or by a group of persons (a collective [application]) ...”Section 8. Applications which may not be processed or dealt with“A written application which does not indicate the place of residence [of the applicant], [or] is not signed by the author (or authors) [of the application], or one whose authorship may not be discerned, shall be considered anonymous and shall not be examined ...”D. Law of Ukraine no. 2657-XII of 2 October 1992 on information (the Data Act)18. The applicable provisions of the above Act, as formulated at the material time, read:Section 47-1. Exemption from liability“Nobody may be held liable for expressing value judgments.Value judgments (insults and libel excluding) are statements which do not contain factual data, such as criticism, evaluations of acts, and statements which cannot be interpreted as containing factual data because of the manner in which they are worded, in particular with regard to the use of hyperbole, allegory and satire. The accuracy of value judgments is not susceptible of proof, nor may a person ask for value judgments to be retracted ...A person shall not be liable for the publication of restricted information if a court finds that this information was of public importance ...”THE LAWI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION19. The applicant complained that the court finding in the defamation proceedings against him had amounted to unfair interference with his right to freedom of expression under Article 10 of the Convention, which reads:“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ...2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”A. Admissibility20. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.B. Merits1. Submissions by the parties21. The applicant maintained that the domestic courts had acted unlawfully and unfairly in penalising him for reading out a letter containing voters’ critical comments concerning G.Sh.’s performance. He maintained that this letter had not been anonymous, given that Mrs A. at least had openly claimed to be an author at the meeting where it had been read out. In any event, in the applicant’s view, making this letter public at a meeting with party members and voters could not qualify as an official “follow-up” on “a citizen’s application” within the meaning of the Citizens’ Applications Act. The domestic courts had therefore incorrectly applied this legal instrument to the facts of the present case. The applicant further argued that the disputed statements were based on true facts and events, and qualified as fair critical comment concerning G.Sh.’s official performance. G.Sh. had earlier been found administratively liable for corrupt acts, and the fact that he had been engaged in illegal business transactions while occupying a post of responsibility within the municipality had been widely discussed. Unfortunately, the domestic courts had refused to question some witnesses and examine some of the evidence presented by the applicant in support of his position. They had also failed to see that the purpose of the letter had been to scrutinise G.Sh.’s political accountability before the voters, rather than to discredit or defame him as a person.22. The Government acknowledged that the finding against the applicant in defamation proceedings had constituted an interference with his freedom of expression. They maintained that the interference had been justified under paragraph 2 of Article 10 of the Convention. In particular, it had been based on foreseeable and accessible legal provisions and pursued a legitimate aim, namely the protection of the reputation of a civil servant. In addition to that, the interference had not been disproportionate to the aim pursued. The disputed statements had contained numerous factual allegations, the accuracy of which the applicant had been unable to prove during the domestic proceedings. Those statements had therefore been defamatory. Accordingly, it had fallen to the applicant to verify their accuracy before disclosing the content of the letter at a public meeting. The applicant had not known the identities of all the authors of the disputed letter, and those identities could also not be discerned during the meeting. Accordingly, the domestic courts had correctly classified the letter as an anonymous application by citizens, which the applicant had had no right to read publicly, especially without verifying the facts. In view of the applicant’s conduct, the defamatory statements had been widely disseminated in the small village where G.Sh. lived with his family. Thus, he had experienced considerable emotional distress, and his reputation as a civil servant had been negatively affected. In these circumstances, the symbolic fine imposed on the applicant had been justified and not disproportionate.2. The Court’s assessment23.

Outcome for Article 10: violation