AS TO THE ADMISSIBILITY OF
Application no. 23510/02
by Nataliya Mykhaylivna VITRENKO AND OTHERS
The European Court of Human Rights (Fifth Section), sitting on 16 December 2008 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
Bortnovska, ad hoc judge,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 25 April 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
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 first applicant, Ms Nataliya Mykhaylivna Vitrenko, is a Ukrainian national who was born in 1951 and lives in Kyiv. The second, third, fourth and fifth applicant are, respectively, Mr Volodymyr Romanovich Marchenko, Ms Liudmila Yakivna Bezugla, Mr Mykhailo Yuriyovich Sydoruk and Mr Petro Mykhailovych Romanchuk, who were born on different dates between 1949 and 1957 and are Ukrainian nationals. They all live in Kyiv. The respondent Government are represented by Mrs Y. Zaytsev, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is the leader of the Progressive Socialist Party of Ukraine. In 2002 the Nataliya Vitrenko Bloc political party nominated the applicants as candidates for the elections to the Verkhovna Rada of Ukraine (Parliament) that were to be held on 31 March 2002.
1. Proceedings before the Central Electoral Commission
On 7 March 2002 the Studiya 1+1 TV Channel (the “1+1 Channel”) had scheduled a political debate on television. Ms Tymoshenko, the leader of another political party (the Yuliya Tymoshenko Bloc) was due to appear for the debate with the first applicant, but failed to do so.
As was later found in the court proceedings the 1+1 Channel cancelled this debate at the last minute by agreement with another TV channel, which planned to hold a debate between the first applicant and Ms Tymoshenko the following day. Therefore, Ms Tymoshenko was in fact not allowed on to the premises of the 1+1 Channel by the security.
Apparently being unaware of these facts, the first applicant reacted during the live broadcast to the non-appearance of her counterpart by saying “She [Ms Tymoshenko] definitely knew that I would prove that she was a thief (воровка), that because of her, Pavel Lazarenko1 and other oligarchs robbed Ukraine, there will be no way out for Ukraine until order is restored. She staged a piece of theatre here and she deliberately did not come here and she will never wash out her guilt, therefore tomorrow [on another TV channel] I will prove who she is. ... It is all planned with American technology. We will not participate in this provocation”.
Ms Tymoshenko lodged a complaint with the Central Electoral Commission that the first applicant had infringed electoral legislation and breached electoral rights. On 16 March 2002 the Central Electoral Commission gave an official warning to the first applicant finding that she had infringed electoral legislation (in particular, Article 51 § 1 of the Parliamentary Elections Act) and the principle of presumption of innocence enshrined in Article 62 of the Constitution of Ukraine. This warning was published in the Ukrainian national newspapers Golos Ukrainy and Uryadovyi kur'er.
The first applicant lodged a complaint against this decision with the Supreme Court. On 26 March 2002 the Supreme Court, composed of one judge, found against the first applicant. It also ruled that the Central Electoral Commission had acted lawfully and that the first applicant had infringed electoral legislation by publicly disseminating untrue statements about Ms Tymoshenko. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal. On 28 March 2002 a panel of three judges of the Supreme Court rejected the applicant's request for extraordinary review of this decision for lack of grounds.
2. Defamation proceedings
Following these events, Ms Tymoshenko instituted defamation proceedings in the Obolonsky District Court of Kyiv (the “Obolonsky Court”) against the first applicant, seeking to protect her honour, dignity and business reputation and claiming that statements disseminated by the first applicant were untrue. She also requested the court to be given an opportunity to rebut these statements.
On 28 March 2002 the court held a hearing in which both parties participated. During the hearing the applicant challenged the videotape of her speech provided by the plaintiff. The court rejected this challenge by a separate ruling. The same day the first applicant tried to appeal against the separate ruling, but her appeal was rejected as that ruling was not subject to separate appeal. The first applicant's representative requested an adjournment of the hearing.
On 12 April 2002, during the next hearing, the first applicant lodged a petition with the court in which she requested the court to obtain from the General Prosecutor's Office and the State Tax Administration copies of the decisions related to investigation of the criminal cases against Ms Tymoshenko2 and other leaders of the United Energy Systems of Ukraine Company and violation of the tax legislation by them “[t]o confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast of the 1+1 Channel during the TV debates on 7 March 2002”. This request was rejected on the ground that it was irrelevant to the proceedings in question.
The first applicant also requested the court to adjourn the hearing.
On 16 April 2002, during the next hearing, the first applicant lodged another, similar request with the court for documents from the General Prosecutor's Office and the State Tax Administration stating “[s]ince I used the word “thief” in its other generally accepted meaning, to confirm (на підтвердження) the words said by me with respect to [Ms] Tymoshenko Y. V. in the live broadcast on the 1+1” Channel during the TV debates on 7 March 2002...”. It was rejected on the same ground.
During the hearing the applicant's representative also requested the court to summon a representative of the Tax Administration who could explain about violations of the tax legislation by Ms Tymoshenko and her company. This request was also refused as irrelevant to the claim under examination.
Following refusal of her requests the applicant sought withdrawal of the judge. By a separate ruling the same day the challenge was rejected as unfounded.
During its next hearing, on 17 April 2002, the court decided to join the 1+1 Channel as co-defendant. That hearing was adjourned until 8 May 2002.
On 8 May 2002 the court postponed the hearing due to the absence of the first applicant and her representatives.
On 28 May 2002, having established that the first applicant and her representatives had failed to appear before the court for the second time without a plausible reason, the court decided to examine the case in their absence. The court found in part against the first applicant. In particular, it established that Ms Tymoshenko had never been convicted of theft or a similar criminal offence. Thus, the statements of the first applicant “she is a thief” and “she will never wash out her guilt” violated Article 62 of the Constitution of Ukraine (presumption of innocence). It also found untruthful the part of the first applicant's speech in which she had accused Ms Tymoshenko of deliberate failure to appear for the TV debate in question. The court ordered the 1+1 Channel to ensure that Ms Tymoshenko had 50 seconds of live broadcast to correct the statements disseminated about her by the first applicant. It also ruled that the first applicant had to pay for the 50-second broadcast which would be given to Ms Tymoshenko.
The first applicant appealed against this decision. She stated, in particular, that the term “thief” had been used to criticise the “political amorality” of Ms Tymoshenko's leadership of United Energy Systems of Ukraine in 1995-1997, and thus had been a value judgment. She further complained that the first-instance court had refused to obtain the evidence from the law-enforcement bodies that she had requested, had unlawfully refused her request for withdrawal of the judge and had held a hearing in her absence.
On 6 December 2002 the Kyiv Court of Appeal, having held a hearing in which all parties participated, upheld the decision of the Obolonsky Court. The court also considered that the refusal of the request for withdrawal of the judge and the decision to continue examination of the case in the applicant's absence were in compliance with the relevant law.
On 13 June 2003 a panel of three judges of the Supreme Court upheld the decisions of the lower courts.
3. First set of proceedings against the Central Electoral Commission
On 31 March 2002 the Central Electoral Commission informed the applicants' party that they had received approximately 3.22 % of the ballots, while the electoral threshold was 4%. The applicants alleged that the election results had been falsified. On 10 April 2002 they lodged a complaint with the Central Electoral Commission against its resolution announcing the results of the elections. They further sought annulment of the election results and demanded that the Central Electoral Commission announce new elections. The Central Electoral Commission allegedly failed to react promptly to this complaint. On 12 April 2002 the applicants lodged a complaint against the Central Electoral Commission with the Supreme Court challenging this omission. On 15 April 2002 their claim was rejected on formal grounds as they had failed to comply with the procedural requirements stipulated by law.
4. Second set of proceedings against the Central Electoral Commission
As the Central Electoral Commission had not accepted the results of the elections in the majority electoral constituencies nos. 18, 35 and 201, new elections were scheduled there for 14 July 2002.
On 22 July 2002 the Central Electoral Commission adopted resolution no. 975, rejecting the first applicant's complaint against the resolution of the regional electoral commission of 15 July 2002 announcing that Mr S. had obtained a majority of the votes during the repeated elections of 14 July 2002. On 22 July 2002 the first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission challenging its decision, on the grounds that Mr S. and his representatives had allegedly bribed voters. On 30 July 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal.
5. Additional parliamentary elections of 8 December 2002
On 8 December 2002 additional parliamentary elections were held in constituency no. 82.
On 13 December 2002 the Central Electoral Commission adopted resolution no. 1030, rejecting the first applicant's complaint against the resolutions of the regional electoral commission of 9 December 2002 announcing that Mr Kh. had obtained a majority of the votes during the repeated elections of 8 December 2002 and rejecting the applicant's complaints about the election results. The first applicant lodged a complaint with the Supreme Court against the Central Electoral Commission. On 23 December 2002 the Supreme Court found against the first applicant. In accordance with the procedural legislation in force at the material time this ruling was final and not subject to appeal.
6. Additional parliamentary elections of 8 June 2003
Additional elections had been announced in constituency no. 206 and the first applicant was registered as a candidate on 24 April 2003.
On 4 June 2003 the Deputy Prosecutor of the Chernigiv Region informed the constituency election commission about a violation of the electoral law in publishing campaign materials by the first applicant.
On 5 June 2003 the constituency commission, having established that Mr M. - the authorised agent of the first applicant in the election campaign - had published campaign material in support of the first applicant in violation of the electoral law, decided to cancel the applicant's registration for repeated violation of the requirements of the electoral law (resolution no. 68).
On 6 June 2003 the Desnyansky District Court of Chernigiv Region considered a complaint from Mr. P, another candidate from the same constituency, of violation of electoral legislation by the first applicant, namely several publications of campaign materials in the Dosvitni Ogni newspaper which were paid for with money not included in the official election expenses of the candidate. The court found against the applicant, confirming a violation of electoral legislation. It based its findings on the facts that the newspaper published this material at its own expense, that this newspaper was founded by the party of which the applicant was a leader, and that the editor-in-chief of the newspaper was Mr M. - the authorised agent of the first applicant in the election campaign.
On 7 June 2003 the Central Electoral Commission cancelled resolution no. 68 of the constituency commission of 5 June 2003, having established that the constituency commission had misinterpreted relevant legislative provisions.
On 7 June 2003 the constituency commission, by its resolution no. 72, cancelled the applicant's registration as a candidate on the basis of the court's decision of 6 June 2003 and in accordance with Article 49 § 3 (12) and (14) of the Parliamentary Elections Act. The same day the Central Electoral Commission upheld the resolution of the constituency commission by its resolution no. 50. The applicant appealed to the Supreme Court.
On 7 June 2003 the Supreme Court, in the presence of the first applicant's representatives and members of the Central Electoral Commission, considered the applicant's appeal and found that the decisions of the relevant electoral commissions were well-founded and in compliance with law. Therefore, the Supreme Court upheld the decisions on the cancellation of the applicant's registration.
B. Relevant domestic and international law and practice
1. Constitution of Ukraine
... 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 material and moral damage inflicted by the collection, storage, use and dissemination of such incorrect information.
A person is presumed innocent of committing a crime and shall not be subjected to criminal punishment until his or her guilt is proved through legal procedure and established by a court verdict of guilty.
...The procedure for conducting elections of People's Deputies of Ukraine shall be established by law.
2. Parliamentary Elections Act
Article 32. Financing of Elections of Deputies
1. Expenditures for the preparation and conduct of elections of deputies shall be incurred exclusively from the funds of the State Budget of Ukraine as well as the resources of election funds of parties (blocs) the candidates for deputy of which are registered in the multi-mandate constituency, and candidates for deputy registered in single-mandate constituencies.
2. In order to finance their election campaign, a party (bloc) of the candidates for deputy, which are registered in the multi-mandate constituency, as well as candidates for deputy registered in single-mandate constituencies, shall establish their election funds, which shall be formed in accordance with the procedure set forth by this Law.
Article 49. Cancellation of the Decision on Registration of a Candidate (Candidates) for Deputy
3. A constituency election commission shall cancel its decision regarding the registration of a candidate for deputy in the following cases:
12) establishment by the court that the candidate for deputy used other sources of financing besides the resources of his/her election fund to budget the election campaign;
14) if a candidate for deputy, upon getting a warning from the constituency or the Central Election Commissions, mentioned in paragraph four of this Article, repeatedly violated the same requirements of this Law.
4. In the event of the violation of other provisions of this Law on the part of a candidate for deputy or a party (bloc), a corresponding election commission may issue a warning, which shall be made public in the state-owned and municipal media or in a different way...
Article 51. Forms and Means of Election Campaign
Campaigning may be performed in any forms and by any means not conflicting with the Constitution of Ukraine and laws of Ukraine. Citizens of Ukraine shall have the right to discuss political programmes of parties (blocs), political, business, and personal features of candidates for deputies freely and thoroughly, to campaign in support or against parties (blocs), candidates for deputies...
3. Civil Code of 1963
Article 7. Protection of honour, dignity and reputation
A citizen or an organisation shall be entitled to demand in a court of law that a statement be refuted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the statement proves that it is truthful.
... Statements disseminated about a citizen or an organisation that do not conform to the truth and cause damage to their interests, honour, dignity or reputation shall be subject to rectification, and pecuniary and non-pecuniary damage can be recovered. A limitation period of one year shall apply to claims concerning rectification of such data and compensation.
4. Resolution (74) 26 of the Committee of Ministers of the Council of Europe on the right of reply – Position of the individual in relation to the press
The relevant extracts of the resolution read as follows:
“The Committee of Ministers ...
Recommends to member governments, as a minimum, that the position of the individual in relation to the media should be in accordance with the following principles:
1. In relation to information concerning individuals published in any medium, the individual concerned shall have an effective possibility for the correction, without undue delay, of incorrect facts relating to him which he has a justified interest in having corrected, such correction being given, as far as possible, the same prominence as the original publication.
2. In relation to the information concerning individuals published in any medium, the individual concerned shall have an effective remedy against the publication of facts and opinions which constitute:
ii. an attack upon his dignity, honour or reputation ...”
5. Recommendation Rec(2004)16 of the Committee of Ministers to member States on the right of reply in the new media environment
The relevant extracts of the recommendation read as follows:
“1. Scope of the right of reply
Any natural or legal person, irrespective of nationality or residence, should be given a right of reply or an equivalent remedy offering a possibility to react to any information in the media presenting inaccurate facts about him or her and which affect his/her personal rights.”
The first applicant complained under Article 10 of the Convention of the restriction on her freedom of expression. Under Article 6 § 1 she maintained that the Ukrainian courts had committed errors of fact and of law, that the first-instance court had given a decision in her absence, and that it was not impartial. She further complained under Articles 6 § 1 and 13 of the Convention that she could not appeal against the interim rulings of the first-instance court.
The applicants alleged a violation of Article 3 of Protocol No. 1, separately and in conjunction with Article 13 of the Convention. They allege, in particular, that the results of the parliamentary elections of 31 March 2002 and additional elections in certain constituencies held on 14 July and 8 December 2002 should not have been announced as the electorate had been bribed and the Central Electoral Commission and the domestic courts had failed to take that into account. The first applicant also complained that she had been unlawfully deprived of the right to stand as a candidate in the additional parliamentary elections of 8 June 2003.
1. The first applicant complained that the warning issued by the Central Electoral Commission and the outcome of the defamation proceedings amounted to an interference with her freedom of expression. She invoked Articles 6 § 1 and 10 of the Convention, which provide, as far as relevant, as follows:
Article 6. Right to a fair trial
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
Article 10. Freedom of expression
“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... for the protection of the reputation or rights of others...”
The Court considers that the applicant's above complaint under Article 6 § 1 falls to be considered under Article 10 of the Convention.
The Government acknowledged interference with the applicant's freedom of expression but maintained this interference was prescribed by law and pursued the legitimate aim of protecting the reputation and right of others, as well as of the public interest to ensure free and fair parliamentary elections”.
They further maintained that the TV debate in question was widely announced and that words used in an election campaign have particular weight and exert a great influence on the formation of public opinion.
They maintained that the first applicant contradicted herself when she claimed that her words had been a value judgment, since in her representations of 12 and 16 April 2002 to the first-instance court she requested documents from the GPO and the Tax Administration to confirm her words, which clearly indicated that the applicant considered her expressions to be factual statements and not value judgments.
The Government also noted that the first applicant was aware of the reasons for the failure of Ms Tymoshenko to appear for the TV debate.
The Government maintained that the interference with the applicant's freedom of expression was proportional to the legitimate aim. The warning issued by the CEC had no practical implication for the applicant as it did not affect her participation in elections. They further considered that the domestic courts had responded to the situation by securing Ms Tymoshenko's right to reply, which was compatible with European standards.
The Government in addition presented extracts from the Russian language dictionary. According to them the principal meaning of the word “thief” was “someone who steals; a criminal, who practises thefts”.
The first applicant maintained that she used the word “thief” in a broad sense, which according to the dictionary stood for “crook, loafer, cheat” and “sly, deceitful, crafty person”. Being an educated person and knowing the above meanings of the words she had not accused Mrs Tymoshenko of committing crimes but had expressed an assumption of the possibility of providing proof of the political amorality of her behaviour in the future. She further maintained that the phrase “she will never wash out her guilt” had not referred to any criminal offence, because unlike the Government's suggestion, the guilt could also be moral, and not necessarily criminal.
She maintained that she had sufficient grounds for her value judgments. She referred to several decisions of the commercial courts concerning violation of tax and financial regulations by the company which used to be chaired by Mrs Tymoshenko. She asserted that these court's findings had given her sufficient grounds to assume that Tymoshenko was a sly, deceitful, crafty person. She further maintained that these violations had been proved by the Deputy Head of the Tax Administration, who had confirmed in his letter to the applicant that Mrs Tymoshenko's company had evaded taxes in large amounts. According to the applicant such amoral behaviour by Mrs Tymoshenko entitled the applicant to draw it to the attention of the public and was not an accusation of specific criminal offences.
She concluded that the position of the Government that her statements that she had an expectation that she would in future provide proof of the amoral behaviour of the politician were statements of fact did not correspond to Article 10 of the Convention.
The Court notes that the warning issued by the Central Electoral Commission, as well as the sanctions imposed by the courts, constituted an interference with the applicant's right to freedom of expression as guaranteed under the first paragraph of Article 10. The interference was “prescribed by law”, namely Article 49 of the Law of Ukraine on Elections of People's Deputies of Ukraine and Article 7 of the Civil Code, and pursued the legitimate aim of protecting “the reputation or rights of others”. The Court must therefore determine if this interference was “necessary in a democratic society”, that is whether it was “proportionate to the legitimate aims pursued” (see, mutatis mutandis, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 170-171, ECHR 2005-...).
In assessing the necessity of the interference, it is important to examine the way in which the relevant domestic authorities dealt with the case (see, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006). Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which must be narrowly interpreted and the necessity for any restriction must be convincingly established. Where what is at stake is the limit of acceptable criticism in the context of public debate on a political question of general interest, the Court, in the exercise of its supervisory function, has to satisfy itself that the national authorities did apply standards which were in conformity with those principles and, moreover, that in doing so they based themselves on an acceptable assessment of the relevant facts (see, Salov v. Ukraine, no. 65518/01, §§ 104-106, ECHR 2005-... (extracts). Furthermore, the Court bears in mind the positive obligation on the State to ensure that persons subjected to defamation have a reasonable opportunity to exercise their right to reply by submitting a response to defamatory information in the same manner as it was disseminated (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, § 90, ECHR 2003-I; Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, DR 48, p. 154; and Earl Spencer and Countess Spencer v. the United Kingdom, nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, DR 25, p.56).
In the present case the domestic courts, when balancing the conflicting interests, namely the applicant's right to freedom of expression on the one hand, and Mrs Tymoshenko's right to protection of reputation on the other, found in favour of Mrs Tymoshenko. They established that the statements made by the first applicant, namely that Mrs Tymoshenko was a thief and that she had deliberately failed to attend the debate, were untrue and found that these statements had damaged the plaintiff's reputation. The Court notes that from the materials submitted by the parties, the word “thief” ordinarily suggests involvement in criminal activities and, therefore, it is most likely that this would be the meaning understood by the public. Therefore, it is not a mere value judgment but an untrue statement of fact. The Court further notes that notwithstanding the particular role played by the first applicant in her capacity as candidate for election to Parliament and in the context of her political campaign, her criticism of a political opponent included untrue accusations which entitled the domestic authorities to consider that there were relevant reasons to take action against the first applicant. In addition, it should be noted that the applicant accused Mrs Tymoshenko of being a thief in her absence. Though the event may be considered to be part of a public debate, there was no actual heated exchange of arguments within a live television broadcast where political leaders may overstep certain limits (see, a contrario, Fuentes Bobo v. Spain, no. 39293/98, § 46, 29 February 2000). In the circumstances of the present case, the decisions of the domestic authorities to issue a warning to be published in the newspapers and to provide Mrs Tymoshenko with the opportunity to rebut the accusations in the same forum where they were made can reasonably be considered to be in line with the principles established in the Court's case-law.
In the light of these findings, it cannot be said that the authorities overstepped the margin of appreciation which they enjoyed in order to determine whether the measures in issue were "necessary in a democratic society" and in particular whether there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued. In the circumstances of the present case, the Court finds no appearance of a violation of Article 10 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The first applicant further complained under Articles 6 § 1 that the first-instance court had given a decision in her absence, and that it was not impartial.
The Court notes that the representatives of the first applicant participated in all preparatory hearings and were able to submit arguments and lodge requests in the course of the proceedings. The failure of the first applicant and her representatives to appear before the court on two successive occasions, for reasons which the domestic court found unconvincing, led to the examination of the case in their absence. This decision does not appear to be unreasonable. The Court reiterates that under its constant case-law, in deciding whether the proceedings have been fair within the meaning of Article 6 of the Convention, the proceedings in question should be considered in their entirety (see among other authorities Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34). Even assuming that the first applicant's absence could raise the issue of infringement of the equality of arms principle, the applicant had the opportunity to make any necessary submissions before the appellate court that had full jurisdiction to review the case both on facts and on law and to remedy any defect in the first-instance court proceedings (see, mutatis mutandis, Edwards, cited above, § 39). Moreover, there is no indication that the proceedings before the court of appeal were in any respect unfair.
As to the complaints of partiality, they are based on the refusal of the judge of the first-instance court to allow all the requests of the first applicant. The Court notes that most of these requests related to the admission of particular pieces of evidence. In this respect, the Court reiterates that it is the domestic courts which are best placed to assess the relevance of evidence to the issues in the case (see, among many other authorities, the judgments in Vidal v. Belgium, 22 April 1992, Series A no. 235-B, pp. 32-33, § 32, and Edwards, cited above, § 34). It does not appear that the procedural decisions of the first-instance court were taken in an arbitrary manner. Moreover, no signs of subjective or objective bias can be detected from the facts of the case.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The first applicant further complained under Articles 6 § 1 and 13 of the Convention that she could not appeal against the procedural rulings of the first-instance court. Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court reiterates that neither Article 6 nor Article 13 of the Convention guarantees, as such, a right of appeal or a right to a second level of jurisdiction (see Guérin v. France, judgment of 29 July 1998, Reports of Judgments and Decisions 1998-V, § 44, and Csepyová v. Slovakia (dec.), no. 67199/01, 14 May 2002). Furthermore, all issues related to such procedural decisions could be raised by the applicant at the court of appeal against the judgment of the first-instance court; that court could, as mentioned above, review the case in its totality including re-evaluation of the facts and examination of new evidence. As it appears from the case file materials the applicant raised all these complaints before the appellate court and received a reasoned reply to them. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
4. The applicants complained of a violation of Article 3 of Protocol No. 1 to the Convention which provides as follows:
“The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”
The Court reiterates that Article 3 of Protocol No. 1 implies essentially the principle of equality of treatment of all citizens in the exercise of their right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, §54). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3 of Protocol No.1. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of this provision have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate (see Gitonas and Others v. Greece, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, p. 1233, § 39, Holovaty v. Ukraine, (dec.), no. 43239/98, 16 March 2000).
In the present case the Court observes that the applicants were fully able to participate in the elections, having equal opportunities to other candidates, and have failed to show any appearance of a breach of their rights under Article 3 of Protocol No.1. The fact that they were unsuccessful does not amount to such a violation (see Babenko v. Ukraine (dec.), no. 43476/98, 4 May 1999).
In so far as the first applicant complained about the cancellation of her registration as a candidate during the additional elections of 8 June 2003, the Court notes that the first applicant failed to substantiate that clear and foreseeable provisions of the electoral legislation designed to prevent abuses and to maintain equality of opportunity during the election campaign had been applied in her case unreasonably or in abusive manner. In the Court's view the domestic authorities carefully examined the applicant's appeals against the second decision on the cancellation of her registration and gave reasoned decisions when upholding it. Therefore, the first applicant failed to show any appearance of a breach of her rights under Article 3 of Protocol No.1 in this respect too.
It follows that this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention.
5. The applicants have also relied on Article 13 of the Convention, which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Court, having found the applicants' respective complaints under Articles 6 and 10 of the Convention and Article 3 of Protocol No. 1 inadmissible, concludes that they have no arguable claims for the purposes of Article 13 of the Convention (see Boyle and Rice v the United Kingdom, judgment of 18 April 1988, Series A no. 131, p. 23, § 52).
It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4.
In view of the above, it is appropriate to reject the application.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips Peer
Deputy Registrar President
2 At the material time criminal proceedings were pending against Ms Tymoshenko for fraud and embezzlement. The charges were based on her business dealings as founder and president of United Energy Systems of Ukraine, an energy trading company.
VITRENKO AND OTHERS v. UKRAINE DECISION
VITRENKO AND OTHERS v. UKRAINE DECISION