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THE FREEDOM OF SPEECH IN THE UKRAINIAN FASHION: ‘BEGGARS MUST NOT BE CHOOSERS…’

22.05.2004
Evgeniy Zakharov, the Kharkov Group for human rights protection
Recently I met Yaroslav Dashkevich in a passage of the institute of philosophy. We briefly discussed news, talked about the 10th anniversary of the independence, that the state is not ours, it is not for people, but against them, as in the Soviet times, and that if we have any achievements, they are not due to the state, but contrary to it. Suddenly the well-chiseled and clever face of my interlocutor lightened with a sad smile: ‘Everything is not so good, but beggars must not be choosers…’

I believe that these words describe well the freedom of speech in the country: ‘beggars must not be choosers’.

In my opinion, the term ‘freedom of expression’ must be understood in a broader way. The opportunity to say what you think, without fear that they would shut your mouth or make you to follow some directions, is senseless without the opportunity to spread what one thinks and it is unthinkable in the informational vacuum: in the modern world a badly informed person could hardly generate something new. And the way of expression must be understood in a broader sense: not only by speech, but also by a song, a symphony, a statue, a dance, a film… In other words, the freedom of speech is inseparable from the freedom of opinion, of information, of creative work. That is why the international agreements on human rights use the term ‘freedom of expression’. For example, Article 19 of the International Pact on civil and political rights reads: ‘1. Every person has the right to have his opinion without being punished. 2. Every person has the right to express his opinion freely; this right includes the freedom for searching, obtaining and distributing every kind of information and ideas, independently of state frontiers, orally, in writing, in printing or using artistic forms, or in any other ways by his choice. 3. Using the rights mentioned in item 2 of the present article impose special obligations and special responsibilities. This means that using these rights can be delimited with some restrictions, which, however, must be established by law and be necessary a) for observing rights and reputation of other people; b) for protecting state security, public order, health or morality of population’.

The purpose of the present text is to observe how the situation concerning the freedom of expression was changing during recent years.

Break-through (1987 – 1991)

In the beginning of 1987 small meetings of literary figures with the public started to be organized in Kharkov Korolenko library. These were meetings with writers, who for many years had no contacts with their readers. I remember well how impressed I was with the speech of Sergey Naboka, who, along with reading his poems, spoke about censorship, the necessity to publish Solzhenitsyn and many other forbidden topics. It was unthinkable for me, who was bred on samizdat, not because of fear, but since I was sure that such talks were senseless. But the situation was changing rather fast. After the mass release of the prisoners of consciousness in February-March of 1987 first independent editions appeared: magazines ‘Glasnost’ (May) and ‘Referendum’ (June), newspaper ‘Express-Chronicle’ (August); ‘Ukrainskiy visnyk’ (‘The Ukrainian Herald’) was reborn in August. Even censored editions more and more dared to touch such topics in history, politics and economy that were unthinkable before. The first structures of civil society were growing: the Association of independent Ukrainian intelligentsia, Ukrainian club of cultural studies, ‘Memorial’, ‘Zeleny svit’ (‘Green world’). A work by Solzhenitsyn (‘To live without lies’) was first published in the February issue of the magazine ‘Vek XX i mir’ for 1989. When I proposed to the Council of the Kharkov ‘Memorial’ to send a support telegram to the magazine, everybody was shy and silent. And in about half a year these young people were much more radical than myself.

‘The five years of glasnost’ (1987-1991) substantially broadened the circle of freedom, giving a hard blow on the censorship. Many topics, facts and events, which were forbidden before, began to be discussed freely. Non-state-owned mass media were organized, some of them, say, ‘Commersant’, quite successfully competed with official mass media. Laws changed too. The attempts of the authorities to manipulate with the public opinion through mass media failed: the society did not permit to deceive itself with fairytales about Lenin’s norms of party democracy and good socialism. Nonetheless, many topics remained taboo, and the access to information was still very restricted, since a ramified system of secrecy remained intact.

Recoil. ‘Pink’ democracy (1991 – 1994)

The disintegration of the USSR and foundation of the independent Ukrainian state seemed to create principally different situation. The communist party was prohibited, the ideological taboos disappeared, the censorship was disbanded and the system of secrecy was destroyed. New information agencies, such as UNIAN and UNIAR, newspapers, magazines were created, the information market was formed. Progressive laws were adopted on printed mass media, on information, on state secrets. Nevertheless, many opportunities were missed, and the sphere of the freedom of expression was even somewhat narrowed.

The main reason for this was, in my opinion, the weakness of the Ukrainian democracy. Communism was not defeated in Ukraine. The Ukrainian society, weakened by mass political repressions, split into Eastern and Western population and spiritually unprepared for the independence, appeared unable to exchange political elite. The process of decommunisation did not happen in Ukraine, in contrast to Poland, Czechia, Hungary and other post-Soviet countries. The Soviet administrative system remained intact with all internal contradictions, the former nomenclature practically completely retained its positions in all branches of administration. Partially it may be explained by the general conservative character of the Ukrainian society and the fact that a typical Ukrainian, on the one hand, is estranged from politics and is predominantly individual, and, on the other hand, he is obedient and conformant. It was clearly seen when at the first presidential election 60% of the voters preferred Leonid Kravchuk, the former head of the ideological department of the Central Committee of the communist party of Ukraine, to Viacheslav Chornovil, a former political prisoner. Even Kravchuk’s declaration that he heard nothing about the artificial famine of 1933 did not change the decision. A quiet and habitual Kravchuk seemed a better choice.

After some time, weighting the circumstances, the Ukrainian nomenclature understood that nothing threatened to its power, and they began to adapt the state to meet their goals and interests, first in making themselves rich. Nobody cared that entire branches of industry were destroyed in the process. Feeling no resistance on the side of the society, the nomenclature, blended with business and state organs, increased the expansion, thus confirming the old rule: a state does with people what they permit to do with them. In the sphere of mass media it was especially vivid.

Unpreparedness of the society to any changes and the general loss of landmarks were the reasons of the absence of political and economic reforms; all this led to the gravest economic crisis and hyperinflation. In this situation the mass media market could not develop and even created: there were no western investments, the media-business had to be unprofitable only. This resulted in the complete dependence of journalist on the mass media owners. As a result, the state mass media could exist being financed from the state budget. Independent mass media had a choice. They either had to close (what happened, for example, with ‘Respublika’, one of the best newspapers of that period) or sell themselves: to find a private investor, who would keep the mass medium in exchange for the support of his financial and political interests. State- and non-state-owned mass media could not hope to be financially supported from the budget in the equal degree. The first reason was the scarcity of the budget, the second was that top authorities never thought to support independent mass media, which could analyze and even criticize the power. On the contrary, both Leonid Kravchuk and Ivan Pliushch (the Parliament speaker) more than once pointed out that the state had to support the periodicals published by the Supreme Rada and the Cabinet of Ministers, as well as the newspapers established by the local radas (councils) of people deputies. This attitude was legally confirmed by a number of the government decisions and President’s decrees. In the government decision of 3 March 1994 the list of state-subsided editions was published for the first time. The editions, founded by private persons or commercial organizations were excluded from the list. The state subsidies for creative unions, the press and publishing houses were inseparably linked with the state control over their activities. The authorities used the old good stick and carrot policy. So, to begin with they cancelled tax privileges for unions of painters, photo-artists, architects, writers, journalists, composers and the like. The creative intelligentsia appeared quite helpless under the conditions of the inflation and was tamed. It was bought by recompensing the expenditures of the creative unions and decreasing the prices for communal services. Yet, these measures were insufficient and the editions and organizations supported by the state languished in poverty. The state included into the list of unprivatizable objects the leading publishing houses and polygraphic enterprises under the pretext of the protection of informational sovereignty (a quite senseless concept, I think!). So a whole branch lost the hope to go out of the crisis, and the lagging behind of the publishing business in Ukraine became inevitable.

Consumers also suffered from the inflation. The runs of printed mass media began to shrink catastrophically: people could nod afford to subscribe, because all their incomes became eating money.

Nonetheless, from the today’s point of view, that period seems to be quite good. It is partly fair that Kravchuk’s period is called ‘pink’ democracy. Actually, in that time one could watch YT-1 TV channel, and read state-owned newspapers, strict measures were applied infrequently (I can recollect only the closure of the TV studio ‘Gart’). Important problems were seriously discussed. For example the discussion of the draft of the Ukrainian Constitution was organized: the draft was discussed in various audiences, publications and TV features, special sessions of local radas were devoted to it, and, as a result, it was rejected as unsatisfactory. Independent mass media still dared to conduct journalist investigations, some regional editions, especially in the West Ukraine, managed to remain independent. The attacks at journalists did not become routine yet.

Defeat (1995 – 1999)

After the President Leonid Kuchma was elected, the process of strengthening control over mass media became stricter and faster. In the end 0f 1994 the Ministry in charge of the press and information was created. It has its regional departments throughout Ukraine – committees in charge of the press and information. The Ministry has the duty to register the printed mass media, to supervise publishing houses, printing shops, polygraphic enterprises and books distribution, to provide the informational security in the press, to prevent divulging the information, which may harm state interests, to umpire questions connected with access to the information and using it, to control documents, which should go abroad that may contain state secrets or propaganda of violence, cruelty and pornography, to control advertisement and so on. I should also mention the President’s decree of 23 November 1995 ‘On the coordination of press services and informational-analytical departments of the organs of state executive power’, in which the vertical of press services of all organs of the executive power is actually designed. The duty to coordinate the activities of all press services is put on the Presidential press service. This service must organize monthly briefings for heads of the press services of the Cabinet of Ministers, ministries and other central organs of the executive power. All press services must coordinate with the Presidential press service all the materials, which are passed to mass media and ‘contain evaluations of internal and external state policy that may have noticeable political resonance’. They must also inform weekly the Presidential press service about the actions, which are conducted by the executive power organs and their officers jointly with mass media. The President’s resolution of 28 March 1996 ‘On measures on increasing the knowledge of the Ukrainian population about the main directions of the state policy’ is of the same kind. According to this resolution, all the executive power organs (the Cabinet of Ministers, Presidential Administration, ministries and other central agencies, oblast, town and district administrations) must create the system for permanent informing the population about actual questions of the internal and external state policy. To this end, the resolution suggests to introduce special Days of informing (once a month) with the participation of heads and other officers of the executive power organs. In my opinion, the suggested measures, which allegedly must serve for increasing the accessibility of the official information, actually resulted in restricting the freedom of information, in the strict state regulation of the access to the information and to a stricter control over mass media.

The nationwide discussion of the draft of the Constitution of 11 March 1996 was organized, as in the ‘old merry days’, under the vigilant eyes of local administrations. In Kharkov one TV journalist was even sacked because he dared to criticize the draft in his online feature without the approval of his bosses.

In spite of the appearance of new TV channels and radio stations, the freedom in electronic mass media decreased. The existence of independent informational and analytical features has actually stopped. In the early 90s Ukrainian TV channels broadcast the CNN news and the news of other Western informational services; later this became unthinkable. The information about the events in the country and in the world was sifted according to the orders of top authorities. It became very difficult to make public opposition opinions. By and by the executive power worked out the rich arsenal of tools to make opposition to lie low. The arsenal was enriching all the time. The simplest way was to close a feature. This happened with the feature ‘UNIAR news’ on the TV channel ‘ЮТАР’ after the funeral of Patriarch Vladimir and with the feature ‘Pisliamova’ on the TV channel ‘1+1’. The opportunity to say something radical completely depended on the political opinions, interests and whims of the channel owner or the financial-political group keeping the channel.

All mass media had (and have) objects open for criticism, as well as such, which may not be concerned. Since all financial and political groups depended on the President, he was absolutely out of criticism. This unwritten rule was sometimes broken, but it happened when the struggle became acute between the President and the Parliament, between the President and the opposition (mass media controlled by Pavlo Lazarenko, Evhen Marchuk, Aleksandr Moroz), during parliamentary and presidential elections.

The executive power countered the criticism cruelly and strongly. The mass media were closed (administrative decision in case of the newspaper ‘Pravda Ukrainy’, taking away the license, redistribution of frequencies); the registration rules became more rigid (e.g., the Ministry of information issued the order, which prohibited – contrary to the law on the press – the registration of mass media by physical persons); numerous checks were carried out by numerous control organs (which, according to laws, have no right to check non-governmental organizations), tax inspection, fire inspection, etc. In all these cases the objects of such checking were not only the mass media, but also the business structures that financed them. Bank accounts were blocked, printing shops refused to print the newspapers, ‘Soyuzpechat’ (the system of distributing the press) refused to touch the editions, journalists were intimidated and even beaten. Libel cases with absurdly high fines became powerful and frequently applied tools of pressure. Unfortunately, courts often satisfied the claims, which resulted in bankruptcy and closure of newspapers. So, the newspaper ‘Vseukrainskie Vedomosti’ stooped to be published after satisfying the absurd libel claim with the enormous compensation sum – 3.5 million UAH. In the last published issue the collective of the newspaper wrote: ‘We are pressed upon every side: our bank account is blocked, we cannot afford to buy paper, to pay for printing and delivery. The safety and even lives of our personnel is endangered (the day before, on 22 March, a group of strangers threw bottles with Molotov’s cocktail to the editorial office – E. Z.). We have only one way out – to suspend publishing our newspaper’.

To defeat the fittest enemies the authorities used combinations of the above methods. So, during 1998 the TV company ‘СТБ’, one of the most independent and objective mass media, suffered from the growing meddling into its work and the threat of closure, if it does not change its political orientation. In February and March the workers of the company experienced attacks of various kinds. A cameraman was beaten, and his equipment and videocassettes were stolen; some Balaclava-helmeted strangers attacked the commercial manager of the company and his wife; the president of the directorate was threatened by phone; the flat of the head of the news service was burgled, videocassettes, computer disks and documents were stolen. In March the bank ‘Ukrkreditbank’ controlled by President Kuchma’s ally handed a claim against the TV company demanding the compensation of 5 million UAH for distributing information on the privatization of a plant, in which the bank participated. On 28 may and 7 June the Committee in charge of distributing frequencies ordered ‘СТБ’ to stop the translation through a satellite. The TV company ignored this order, which would result in the loss of a half of viewers. On 26 August the tax inspection froze the bank accounts of ‘СТБ’ for tax violations. As a result the company had to temporarily refuse from the translation of political features and in October began to endorse the President.

In order to tame the critics not only civil libel cases were used, but also criminal libel cases. According to the data of former Minister of justice Sergey Golovaty, in 1998 123 persons were condemned for libel, seven out of them being incarcerated.

After the parliamentary election of 1998 the control of the executive power over mass media became more rigid. The authorities began to use the USS for persecuting the opposition mass media. To this end the power had to replace the head of the USS and the majority of the heads of oblast departments (perhaps, the reason was that Vladimir Radchenko, the then USS head, tried to evade the participation of his service in the political struggle). To strengthen the control (although it seems impossible to an inexperienced eye) an attempt was made to monopolize electronic mass media and publishing facilities.

On 16 September 1998 the President issued Decree No. 1033 on the creation of the State stock companies ‘Ukraine TV and radio broadcasting’ and ‘Ukraine publishing and polygraphic concern’. It was executed during October 1998 – March 1999. The company ‘Ukraine TV and radio broadcasting’ was organized on the base of the National TV company of Ukraine, National radio company of Ukraine, the concern of radio broadcasting, radio communications and TV. The company ‘Ukraine publishing and polygraphic concern’ was formed by driving into it all state publishing houses (except two) and all state polygraphic enterprises (all in all, 56 organizations); in the process many of them lost their status of a juridical person. The oblast committees in charge of information checked the addresses of a few non-state printing shops and checked the location of the polygraphic equipment owned by these organizations. After this the tax inspection conducted an inspection in order to check for which purpose the polygraphic equipment was used.

The Supreme Rada could not stand Decree No. 1033 the rightly interpreting it as and attempt of the President the Cabinet of Ministers to get too much power. On 23 December 1998 the Supreme Rada issued the Resolution about the President Decree compiled by the Committee in charge of the freedom of speech and information, in which it was fairly, in my opinion, stated that the Decree violated a number of articles of the Constitution and the norms of several laws. The Supreme Rada suggested the President to abolish the Decree, but he was adamant. Then the Supreme Rada demanded from the Cabinet of Ministers the information on the situation in the informational sphere and, having received it, adopted the new decision of 16 February. The decision pointed out that ‘the mass media, which oppose and criticize executive power organs are persecuted by this organs, the General Prosecutor’s office and some courts’, that ‘the political censorship is in fact realized in various ways’ and that ‘the structural reconstruction of the state TV and radio broadcasting and publishing-polygraphic industry on the principles of monopolization is, in fact, destructive’. The Resolution also acknowledged ‘the insufficiency of their own efforts and insistence in the legal provisions of the informational sphere, forming the state informational policy and realizing the parliamentary control over the activities of the Cabinet of Ministers and other executive power organs in realizing this policy’. In the same time the Resolution contained the standard accusations of hackers, distributors of viruses and pornography in computer networks (the network FidoNet was given as an example) and the demands to executive power organs to provide the control in the informational sphere.

By the way, I want to mention about a tendency, which is very dangerous for the future of our country, of growing secrecy and restricting access to information. Today any head of any executive power organ may classify any document concerning him as ‘for service use only’. The label ‘not for the press’ is also often used, which makes normative acts inaccessible. It must be pointed out that the use of these labels is contrary to law. It is impossible to discuss these complicated questions in the framework of this article: they need special treatment.

The New York Committee for protection of journalists’ rights listed the Ukrainian President among 10 the most bitter enemies of the press in 1998 (the 6th place). Although, in my opinion, the Presidents of Belarus, Uzbekistan, Tajikistan and some other countries deserve the place in this list more than our President, the choice of the Committee is well-grounded: Leonid Kuchma has a personal responsibility for an abrupt restriction of the freedom that happened in Ukraine during his presidency. The Committee confirmed again its choice in 2000.

What was the freedom of choice for Ukrainian journalists under such circumstances? As Dmitriy Djangirov rightly noted, the wish to retain power by any means, not supported by economic successes and crystal honesty of the ruling elite, objectively turns any edition or journalist, who tries to describe frankly the situation in the country, into an implacable foe of the top authorities. In this situation the journalists, unfortunately, could not resist on the corporative level. The servile licking of the feeding hand and, on the contrary, biting master’s enemies became the norm of behavior. Ordered articles became a routine. The most decent editions practice self-censorship: some questions, say, may not be discussed in a respectable society. Some journalists, in order to save their faces, left political journalism for safer topics. We must respect those, who, trying to remain honest, refused to continue their projects and looked for other projects (as, for instance, Vladimir Ruban, Aleksandr Tkachenko, Aleksandr Krivenko). A few choose to stay opposition journalists (God help them!), but the necessity to permanently resist to the pressure from outside inevitably leads to the opposition editions and their authors marginal. It is very difficult to remain independent and unbiased under permanent pressure. That is why the opposition editions, whose motto may be Voltaire’s ‘Crush the serpent!’, sometimes make one to recollect the thesis about the collective propagandist and agitator, as Bolsheviks said. I believe that this is the reason why it is near to impossibly to come across serious analytical articles in the opposition press.

Naturally, all attempts to create a nation-wide newspaper, which would be read in all regions of Ukraine, under such conditions failed. As the results of various polls showed, people prefer local press. If to speak about the information about the situation in the country, then many potential readers, not trusting in the controlled mass media and having no money to subscribe, returned to the popular information sources of the Soviet period: the BBC, ‘Voice of America’ and radio ‘Liberty’.

One step back and two steps ahead? (2000 – 2001)

After Leonid Kuchma’s victory at the second election we really saw a new president: he shamelessly made us to take part in the referendum, held allegedly by the people’s initiative, although it was a pure President’s whim, in order to finally crash the opposition. Informational features of the TV channel ‘YT-1’ became typical ‘five-minutes of hate’. The informational war in electronic and printed mass media against the first successful government reminded the campaigns of the late 30s against so-called enemies of the people. It seemed that almost all former amateurs of the freedom of speech were tamed, each obediently played the part he was given. The authorities did not intend to treat kindly the rest, in spite the threats from the Council of Europe.

Paradoxically the situation unexpectedly started to improve. It was caused by two reasons. First, the appearance of independent uncensored network editions caught unprepared the state organs responsible for the control over the press. The opening in 2000 of not a small (for Ukraine) number of news sites, such as korrespondent.net, pro_ua, UKROP, for_ua, ‘Ukrainskaya Pravda’ and others, vivified the informational space of Ukraine. The network editions attracted rather many experienced journalists from printed mass media. Many methods of arm-twisting habitual for the power did not work there. Secondly, Georgiy Gongadze’s disappearance and the3 cassette scandal brought about a great impulse to the opposition and made the President to defend himself. The guilt of some top authorities of the disappearance of Gongadze and other crimes is not proved, but the accusations have not been disproved yet. This bleak and difficult problem cannot help not to influence the course of events. Journalists at last used the opportunity to broaden the circle of the discussed topics and make these discussions much more acute.

Taking off the secrecy from ‘The list of information making state secret’ by the USS in March 2001 was another positive step. Some further steps were made. In July 2001 the Supreme Rada adopted some progressive changes in the legislation on information (although the President vetoed them), on 25 May the Plenum of the Supreme Court of Ukraine adopted the progressive resolution ‘On court practices in cases of recompensing moral (not property) damage’, in which the Supreme Court insistently recommended to courts to use the European Convention on protecting human rights and basic freedoms. There were already several precedents of applying the Convention by Ukrainian courts in libel cases against mass media, when the refusal to open the case was based on decisions of the European Court of human rights. Upon the whole, one may say that claims against journalists about protection honor and dignity became to be solved in their favor, if the journalists were honest. These positive changes occurred mainly thanks to the IREX ProMedia Program of the legal defense and enlightenment of mass media. The program saved 29,093,900 UAH for mass media (this is the difference between the demanded and paid libel fines).

It is difficult to predict whether the Ukrainian journalists will manage to keep the results achieved during the last year. The coming parliamentary election promises a new coil of persecutions of the nonconformist political parties and their editions, and now it is unclear which forces could defend the rebels. The executive power is also eager to control the Internet, which is confirmed by the draft of the Informational Code. What promises nothing good is the usual absence of the corporative solidarity of journalists and their desire to fight on the legal level against violations of freedom.

What shall we hope for? The broadening of the freedom of speech in Ukraine in the future depends, first of all, upon ourselves. Today the image of the freedom of speech in Ukraine is represented, in my opinion, by the daring and hard-edged (and sometimes rude and unprofessional) newspaper ‘Politika’, which survived 20 libel claims with the total compensation sum of 220 million UAH, twice closed by court decisions, resurrected by the same journalist team in the form of the newspaper ‘Svoboda’, which is already got a refusal to be printed (that is why it is issued as several sheets of paper clipped together) and to be distributed, and which, in spite of all, continues to be issued, plumed, but undefeated. ‘Beggars must not be choosers…’

The article was published in Ukrainian in the September issue of the magazine ’Kritika’

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