NEDILENKO AND KOGUT v. UKRAINE

 
 
FIFTH SECTION
DECISION
Application no. 42058/08
Mykola Vasylyovych NEDILENKO and Ivan Volodymyrovych KOGUT
against Ukraine
 
The European Court of Human Rights (Fifth Section), sitting on 14 May 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 12 August 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1.  The applicants, Mr Mykola Vasylyovych Nedilenko (“the first applicant”) and Mr Ivan Volodymyrovych Kogut (“the second applicant”), are Ukrainian nationals, who were born in 1956 and 1968 respectively and live in Ivano-Frankivsk. They were represented before the Court by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A.  The circumstances of the case
3.  The facts of the case, as submitted by the parties, may be summarised as follows.
4.  At the material time, the first applicant was a former head of a local branch of a private bank and the second applicant was a businessman. The applicants are relatives.
5.  On 16 November and 4 December 2006 the Internet sites and proUa.ua respectively published an article about the first applicant, accusing him of abuse of position and ineffective management of the bank. The article was signed by a certain O.A.
6.  On 15 November 2006 an article about the second applicant was published on the website with K.B. mentioned as the author of the article. In the said article, the second applicant was accused of bribing a judge by providing free service to him in a café run by a company owned by the second applicant.
7.  In November 2007 the applicants instituted defamation proceedings in the Ivano-Frankivsk City Court. In their statements of claims they indicated as the defendants the Internet sites, accompanied by, in small print and with the mention “as preliminarily obvious” («попередньо очевидно:»), the names of the authors as stated in the impugned articles. The applicants submitted that the articles contained false allegations which had severely affected their private life and reputation and they claimed compensation for non-pecuniary damage. In doing so, they informed the court that they had not been able to provide all the necessary information about the defendants as the websites contained no information as to the registered addresses of their owners and the authors of the articles. The applicants also contended, without providing details, that they had been unsuccessful in other attempts to find this information. They therefore requested the court to order the relevant investigation authorities to provide the necessary information concerning the defendants. Lastly, the applicants asked the court, in case no information about the defendants could be found, to establish the legal fact that the information in the impugned articles had been untruthful.
8.  On 26 November 2007 the Ivano-Frankivsk City Court gave the applicants a deadline until 10 December 2007 to eliminate shortcomings in their claims. Among other things, the court invited them to indicate the owners of the websites, clearly state who were the authors of the articles and provide their registered addresses or location.
9.  On 8 December 2007 the applicants submitted rectified claims in which they reiterated that it had seemed impossible for them to identify the owners of the websites and their addresses as well as the authors’ addresses. They noted that they had asked the court to take measures to establish the identity of the defendants and, in case this proved impossible, to establish the fact of the untruthfulness of the information.
10.  On 18 and 19 December 2007 the court returned the claims to the first and the second applicants respectively. It noted, inter alia, that the applicants had failed to rectify the shortcomings in that they had not provided the names of the owners of the websites, had not clearly stated who were the authors of the articles and had not provided details as regards the registered addresses of the relevant persons.
11.  The applicants appealed. They stated, inter alia, that they had informed the court that it had not been possible for them to provide the information requested and that, in such circumstances, the court should have admitted their claim for examination, decided on securing evidence and ordered the relevant authorities to take measures to establish the relevant information about the authors of the articles and the owners of the websites; pending the establishment of the necessary information by the relevant authorities, the proceedings should have been stayed. If it was not possible to find the relevant information, the first-instance court, in accordance with Article 277 of the Civil Code, should have established the fact that the allegations contained in the impugned articles were untrue.
12.  On 13 and 18 February 2008 the Ivano-Frankivsk Court of Appeal upheld the decisions of the first-instance court in respect of the second and first applicants’ claims respectively. It noted, inter alia, that the second applicant could not rely in his appeal on Article 277 of the Civil Code as, in order to use the remedy afforded by this Article, he should have lodged a relevant application with the court requesting it to establish the fact of untruthfulness of the information in accordance with the special non‑contentious procedure provided for the establishment of facts of legal significance (в порядку окремого провадження для встановлення фактів, що мають юридичне значення). In the decision related to the first applicant, the Court of Appeal noted that pursuant to the domestic law it was possible to stay the proceedings only after the claim was admitted for consideration.
13.  On 6 May 2008 the Supreme Court of Ukraine rejected requests by the applicants for leave to appeal in cassation.
14.  In the meantime, in December 2007 the second applicant also lodged a criminal complaint with the the Ivano-Frankivsk prosecutor’s office (“the prosecutor’s office”), alleging abuse of rights and knowingly false notification of a crime (under Article 356 and 383 of the Criminal Code respectively) on the part of those who posted the articles. He requested, inter alia, that the prosecuting authorities should establish the registered addresses of the website owners and the addresses of any other individuals involved in disseminating the defamatory statements. In 2011 the police eventually refused to institute criminal proceeding in the applicant’s case because of the lack of evidence of a crime.
B.  Relevant domestic law and practice
15.  Article 32 of the Constitution of Ukraine of 28 June 1996 provides as follows:
“... Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
16.  Article 277 of the Civil Code of Ukraine of 16 January 2003 (as worded at the material time) concerned disproof of untruthful information and read as follows:
“1. A natural person, whose personal non-property rights were violated due to dissemination of untruthful information about him/her and his/her family members, shall have the right to response and to disprove this information.
...
3. Disseminated negative information about a person shall be considered untruthful, unless the person who disseminated it proves the contrary.
4. Disproof of untruthful information shall be realised by the person who disseminated such information.
The disseminator of the information submitted by an official person performing his/her official duties shall be a legal entity, for which such an official person works.
If the person who disseminated untruthful information is unknown, the natural person whose right is violated may go to court to ascertain the fact of untruthful information and to disprove it.
...
6. A natural person whose personal non-property rights were violated in the press or other mass media shall have the right to response, as well as to disprove such information in the same mass media in accordance with the procedure set by the law.
If the response and disproof in the same mass media is impossible due to its termination, such response and disproof must be promulgated in another mass media at the expense of the person who disseminated the untruthful information.
Disproof of untruthful information shall be realised irrespective of the fault of the person who disseminated it.
7. Disproof of untruthful information shall be made in the same manner as its dissemination.”
17.  The relevant provisions of the Code of Civil Procedure of 18 March 2004 (as worded at the material time) provided as follows:
Article 119. Form and content of the statement of claim
“... 2. The statements of claim shall include:
... (2) name (title) of plaintiff and defendant, ... their place of residence or location, postal code, number of means of communication, if known;”
Article 121. Setting aside the statement of claim, return of the statement of claim
“1. The judge having determined that a statement of claim was filed without the observance of the requirements set out in Articles 119 and 120 of the Code..., shall pass a ruling where the grounds for setting aside the statement are stated and inform the plaintiff about it, and give him time to eliminate the defects.
2. The statement of claim is considered to be filed on the day of its initial submission to the court if the plaintiff pursuant to the court decree fulfills the requirements stipulated in Articles 119 and 120 of the Code within the established term and pays the court fee and costs for the information and technical support of the case. Otherwise the statement is considered unfiled and shall be returned to the plaintiff. ...”
Article 122 Opening of proceedings
“1. The judge shall open proceedings in a civil case only on the basis of a statement of claim which is completed and submitted in accordance with the requirements set by this Code. ...”
18.  Article 56 of the Law on Telecommunications of 18 November 2003 provides that the administration of the Ukrainian segment of the Internet address space within the .ua domain shall be carried out by a non-state institution formed by self‑governed organisations of Internet operators/providers and registered in compliance with applicable international requirements.
19.  The relevant provisions of the Governmental Decree on Administration of the .UA domain, no. 447-p of 22 July 2003 provide that the management of the address space of the Ukrainian segment of the Internet, servicing and administration of the system register and domain name system of the .UA top-level domain shall be carried out by the "Ukrainian Network Information Center" (“the UNIC”).
COMPLAINTS
20.  The applicants complained under Articles 6 and 13 of the Convention that the respondent State had failed to fulfil, as a result of the courts’ refusal to consider their claims on the merits, its positive obligation to secure their right to respect for their reputation which had been damaged by the articles published on the websites.
THE LAW
Admissibility
1.  The parties’ submissions
21.  The Government submitted that the application was inadmissible as the applicants had failed to lodge their defamation claims in compliance with the procedural requirements and failed to show that they had made reasonable efforts to comply with those formalities to no avail. They emphasised that the applicants had a number of avenues to find the information they needed in order to properly complete their claims to the court. They noted, inter alia, that the applicants could have requested the administrators of the website which had published the impugned articles to disclose the identity of the authors and the websites’ owners. Alternatively, they could have requested information about the owners of the websites from the UNIC, which is the union of internet providers/operators entrusted by the Government with administering the address space of the Ukrainian segment of Internet (управління адресним простором українського сегмента мережі Інтернет), maintaining and keeping the system register and domain name system of the .UA top-level domain (обслуговування та адміністрування системного реєстру і системи доменних імен домену верхнього рівня ".UA"). In case of an unsuccessful application to UNIC, it would be open to the applicants to request the court, under Article 133 of the Code of Civil Procedure, to secure evidence by ordering UNIC to disclose the relevant information.
22.  According to the Government, if all attempts to find the necessary information about the defendant had been unsuccessful, the applicants could have used another remedy, in particular, to have the issue of truthfulness of information contained in the articles resolved through non-contentious proceedings.
23.  The applicants maintained that they had done everything possible to establish the relevant information about the authors of the defamatory articles and the owners of the websites which published the articles. In particular, they had looked for the information on the websites at issue and the second applicant, in addition, had requested the prosecutor’s office to institute criminal proceedings and to identify all persons involved in the dissemination of the defamatory articles. According to the applicants, they had not been aware, and not been informed by the courts, of the existence of UNIC. They also stated that in any event their application to UNIC would have been ineffective as this organisation was not obliged by any law to reveal information it possessed but had discretionary powers on the matter. They provided examples of cases of unsuccessful applications to UNIC by individuals and a court and stated, in addition, that UNIC would not have been able to provide information about the authors of the impugned articles in any event.
24.  The applicants further noted that they did request the first-instance court to secure evidence, namely by means of instructing the investigating bodies to establish the necessary information about the defendants, but to no avail. At the same time, they stated before the Court, having provided examples from the domestic case-law, that normally such applications would not be granted as, inter alia, information about the defendants would not be treated as “evidence” by the domestic courts.
25.  Lastly, the applicants submitted that examining their case in non-contentious proceedings would only result in acknowledging by the court the fact of dissemination of untrue information but would not bring those responsible to justice and thus would not remedy the violation of their rights in full and no other, i.e. criminal, remedy had been available.
2.  The Court’s assessment
26.  The Court notes that the authorities’ failure to protect the applicants’ reputation lies at the heart of the application. It reiterates that the right to protection of one’s reputation is covered by Article 8 of the Convention as part of the right to respect for private life (see Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010; and Annen v. Germany, no. 3690/10, § 54, 26 November 2015).
27.  In several cases where a close link was found between the complaints raised under Article 6 and Article 8, the Court has considered the complaint under Article 6 as being part of the complaint under Article 8 (see, for instance, Kutzner v. Germany, no. 46544/99, § 57, 26 February 2002; Diamante and Pelliccioni v. San Marino, nos. 32250/08 and 32250/08, § 151, 27 September 2011; and Anghel v. Italy, no. 5968/09, § 69, 25 June 2013).
28.  The Court therefore finds it appropriate, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), to examine the applicants’ complaint under Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
29.  Although the object of Article 8 is to protect the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Botta v. Italy, 24 February 1998, § 33, Reports 1998‑I; and Mikulić v. Croatia, no. 53176/99, § 57, ECHR 2002‑I).
30.  The choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation, whether the obligations on the State are positive or negative. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue (see X and Y v. the Netherlands, cited above, § 24, and Von Hannover v. Germany (No. 2) [GC], nos. 40660/08 and 60641/08 § 104, 7 February 2012).
31.  In the circumstances of the present case, the Court will examine whether the procedural protection enjoyed by the applicants at the domestic level in respect of their right to respect for their private life under Article 8 of the Convention was practical and effective (see, among many other authorities, Turek v. Slovakia, no. 57986/00, § 113, 14 February 2006; and Papamichalopoulos and Others v. Greece, judgment of 24 June 1993, Series A no. 260-B, § 42), and consequently compatible with that Article.
32.  It is not in dispute between the parties that recourse to civil proceedings was the only remedy available to the applicants under Ukrainian law for protecting their reputation as the law provided no criminal responsibility for defamation. The applicants used this remedy and lodged defamation claims with the Ivano-Frankivsk City Court. They argued that the websites and the authors had published articles containing false allegations and claimed financial reparation of the loss sustained as a result of the alleged defamation. The remedy pursued by the applicants could have given rise to a declaration that the article was defamatory and could have also eventually led to an award of compensation. It thus had been potentially able to address the essence of the applicants’ complaint which they brought before this Court. However, the applicants claimed that the remedy had been ineffective in their situation as the domestic courts eventually decided not to accept the claims for adjudication because of the applicants’ failure to comply with procedural formalities, namely, their failure to indicate the owners of the websites, clearly state who were the authors of the articles and provide their registered addresses. By virtue of Article 119 § 2 of the Code of Civil Procedure it was the plaintiff’s responsibility to establish the relevant information and to indicate it in his/her statement of claim.
33.  The applicants submitted both before this Court and in the domestic proceedings that they had been unable to comply with the above requirement as all their efforts to find the relevant information had been unsuccessful. At the same time, as follows from their own submissions, their efforts consisted merely in checking for the information on the websites which published the impugned articles.
34.  Indeed, there is no evidence that the applicants were unable to contact the administrators of the impugned websites at issue with a view to obtaining the relevant information about the authors of the articles and the owners of the websites. Likewise, the applicants had not tried to seek this information from UNIC which was the holder of the register of the names in the “.UA” domain and performed its activity on the basis of the Governmental Decree on Administration of the “.UA” domain (see above) which was accessible to the public. The applicants’ argument that they had not been aware of the existence of UNIC and therefore did not apply to that organisation cannot serve as justification for the applicants. They could have sought advice from a legal counsel in preparation of their civil claims, including on possible ways to gather the necessary information for their statements of claims.
35.  The Court agrees with the Government that these were relatively easy steps that the applicants would have been reasonably expected to take, if necessary with legal advice, in their attempts to find the information about the defendants and to comply with the formal requirements for their claims. However, they failed to use these possibilities. The Court is unaware of what would have happened if the applicants had in fact used the available avenues and cannot speculate as to the outcome.
36.  That said, in the circumstances of the present case, namely, in the absence of reasonable efforts on the part of the applicants to find the necessary information to duly present their statements of claim, the Court is not prepared to conclude that the requirement to provide information about the defendants had placed an unrealistic burden on the applicants in practice and was thus excessive. The applicants’ proceedings therefore cannot be considered as depriving them of effective protection of their right to respect for their private life (see and compare, Turek v. Slovakia, cited above, § 116).
37.  In view of the above considerations, the Court does not find it necessary to analyse the exchange of further arguments between the parties and rejects the application as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 June 2019.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident

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