UHHRU appeals against court ruling on anti-Tymoshenko ads

As reported, on 22 September the Pechersky District Court in Kyiv issued a ruling pending review of a civil suit. This prohibits Petro Pidlubny and any other individuals or legal entities, regardless of their form of ownership, from placing on billboards, other forms of external advertising. radio and television, the Internet, and electronic media outlets any “unfair” [nedobrosovisna is that which is not done with good conscience] advertisements regarding Tymoshenko’s activities”, as well as any other unfair social advertising and publish it in any way before the dispute is examined on its merits.

Since the ruling concerned any individual or legal entity, then any are entitled to appeal against this ruling. Human rights defenders have therefore lodged an appeal with the courts.  The Ukrainian Helsinki Human Rights Union with bar lawyer Viacheslav Yakubenko state that the ruling is unlawful and unwarranted, and violates their rights. Their appeal reads:

“1) The court in this case resolved an issue regarding my rights and duties without involving me in the case.

Since I am an individual, the court prohibited me also from placing any unfair advertising regarding the activities of Prime Minister Tymoshenko.

In accordance with Article 311 § 1.4 a court ruling should be revoked if the court resolved an issue regarding the rights and duties of people who did not take part in the case.

2) The court’s conclusions do not correspond with the material of the case.

As stipulated in Article 10 § 3 of the Law “On advertising”, a decision to find advertising unfair is taken only by the State bodies indicated in Article 26 of the same law.

Since there are no conclusions from any of the mentioned State bodies regarding the unfairness of the advertisement about Yulia Tymoshenko, the court had no legitimate grounds for issuing a ruling pending review of the case.

3) In passing the ruling under appeal, the court failed to take into consideration the fact that Y. Tymoshenko is a public figure, that is, must be open to criticism.

The European Court of Human Rights in its judgments has on many occasions indicated that public figures must be ready for wide critical coverage of their activities (for example, the case of Lingens v. Austria (1986) 8 EHRR 407).  We would point out that through the Law “On ratification of the 1950 Convention on the Protection of Human Rights and Fundamental Freedoms”, Ukraine recognized the jurisdiction of the European Court of Human Rights on all issues concerning the interpretation and application of the Convention. According to Article 17 of the Law “On implementation of rulings and application of the case law of the European Court of Human Rights”, Ukrainian courts shall apply the European Convention on the Protection of Human Rights and Fundamental Freedoms and the case law of the Court as a source of law when examining cases.  

For example, the European Court noted that “the danger inherent in prior restrictions requires a very careful approach by the court” («The Observer and Guardian v. the UK» (Spycatcher case). Judgement of 26 Nov. 1991).

This principle was not adhered to by the first instance court since it did not investigation how not placing a ban on the circulation of advertising could hinder or render impossible enforcement of a future court rulings.”

UHHRU is asking the Court of Appeal to revoke the judgment of 22 September (No. 2-1800-1/09.