How the Court of Appeal neglected laws of Ukraine, and obliged AntAC to delete information about Martynenko. The Supreme Court will decide
The Cassation Civil Court within the Supreme Court opened the proceeding upon the appeal of the Anti-Corruption Action Center (AntAC) against the decision of Pechersk District Court and the decision of Kyiv Court of Appeal, according to which the public organization should delete and never publish information in future about the accused of 700 million UAH misappropriation former Member of Parliament Mykola Martynenko at at the website pep.org.ua.
In the appeal activists also asked not to execute the decision of the Court of Appeal. Namely, not to force us to delete information about Martynenko until the final decision of the Supreme Court.
The judge of the Supreme Court Valentyn Serdyuk refused to satisfy the appeal. But he did so only because what Martynenko and his attorneys had asked for “was not enforceable”. That means that the Court of Appeal obliged the AntAC to delete information about former Member of Parliament. But no one can force us to do so.
Martynenko appeals in the court against the use of his name in our Public Register of Domestic Politically Exposed Persons of Ukraine, where the criminal case regarding former Member of Parliament is described. He demands to delete the entire dossier about him. And Pechersk District Court satisfied his appeal.
After absurd decision of Pechersk District Court to delete information about Martynenko, the AntAC sent the appeal to Kyiv Court of Appeal. However, the assault on freedom of speech continued.
When Anti-Corruption Action Center received full text of the appeal, analyzed it, we decided to explain the bias of court’s arguments, which create dangerous precedent for activists and mass media.
The Court of Appeal relied only on norms favorable to itself and Martynenko
Judges of the Court of Appeal after quoting norms of law favorable to Martynenko in their decision wrote that “only after entry into force the indictment regarding the conviction of the particular person for committing criminal offenses, it is admissible to publish articles in the media with the detailed description of criminal offenses”.
Of course, this is the manipulation, because the panel of judges of the Court of Appeal for some reason paid no attention to norms of the law and circumstances, which confirm that there were no violations in our actions. Read more below.
Judges “forgot” that Martynenko was public figure
From 1998 to 2015 Martynenko was the Member of Parliament. Moreover, he was the head of the Verkhovna Rada Committee on Fuel and Energy Complex, Nuclear Policy and Nuclear Safety. That means that he is public figure, and the case against him concerns fuel and energy complex, and therefore, there is the increased interest of society. According to the law On Information, the name of the person can be used if the public interest outweighs the potential harm to the defendant.
The court closed its eyes to violations regarding freedom of speech
Practice of the European Court of Human Rights shows that the presumption of innocence of the person cannot impede informing the public about such loud cases regarding top officials. Judges of the Court of Appeal wrote in several paragraphs what the presumption of innocence was, but they did not pay attention to the fact that removal of information about Martynenko’s criminal case was the violation of freedom of speech.
Information about Martynenko was widely published in the media. It makes it widely known in Ukraine. Former Member of Parliament himself told details of his case in the interview. This is not mentioned in court’s decision.
Instead, judges wrote that “such information may be distributed in the media only with the permission of the investigator or the prosecutor and by using the encryption”.
According to such logic, all media should contact the NABU and the SAPO regarding the permission to attend every court hearing in order to highlight criminal cases against top officials. This contradicts common sense and current legislation.
One of basic principles of the criminal justice is transparency and openness of the court proceeding. That means that anyone can write down, record and broadcast in the media anything that happens at the court hearing, if the court does not prohibit it in the particular case. There were no such prohibitions at the hearings we had attended. Moreover, the defense party also never asked to hold the hearing in the closed mode.
Judges did not pay attention to documents which AntAC were obliged to provide by their decision
At one of the hearings judges of the Court of Appeals obliged the AntAC to write down in details the list of publications in the media from which the information was obtained for the website pep.org.ua. Our organization fulfilled the request. But the court did not even consider these documents during the next hearing, and quickly moved to the debate stage and went to the deliberations room to make the decision. This suggests the idea of the bias. Why did they ask this list?
Judges create dangerous precedent
Thus, the decision of Kyiv Court of Appeal is not only one-sided, but also carries serious danger. This decision creates the precedent whereby every defendant can go to the court with the request to delete publicly relevant information about him.
Information about Mykola Martynenko and his case is published on the website of our Public Register of Domestic Politically Exposed Persons of Ukraine. Former Member of Parliament does not like it. He filed the lawsuit with the demand to delete all information. Pechersk District Court satisfied it. And the Court of Appeal confirmed it.
In the lawsuit the politician quoted the plot of court’s decisions about his relations with offshore companies with the help of which, as the NABU detectives established, financial schemes were made. This, according to former Member of Parliament, violates the right to use his name.
The criminal case against Martynenko is currently ongoing. He is accused of misappropriation of nearly 700 million UAH from the state enterprises Eastern Mining and Processing Works VostGOK and NNEGC Energoatom. The case was transferred to the Anti-Corruption Court.