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Criminal proceedings under Article 111 of CC of Ukraine against the journalists

15.12.2020
Yevgen Zakharov

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We are aware of four criminal proceedings in which the journalists were accused of treason in connection with the performance of their professional duties. Let us examine those proceedings separately.

The case of Ruslan Kotsaba

On 17 January 2015 Ruslan Kotsaba, a journalist from Ivano-Frankivsk, posted a video appeal to the President of Ukraine titled “Internet action “I refuse the mobilization” on his personal page on Youtube video hosting. In that appeal Kotsaba introduced himself as a journalist from “112 Країна” channel (although his contract with the channel had expired by then) and publically urged “all adequate people” to refuse the mobilization which was declared contrary to the current legislation of Ukraine. It should be noted that Kotsaba was removed from the military register in 2006, when he reached the age of 40, and he was not subject to mobilization. He could only be mobilized after filing a personal appeal which he did not submit to the district military registration and enlistment office.

The video appeal was declared on the very day when Verkhovna Rada of Ukraine adopted the law “On approval of the Decree of the President of Ukraine “On partial mobilization” of 15.01.2015 No.113-VIII. Another wave of partial mobilization began on 20 January 2015.

After that Kotsaba gave interviews to several Russian and Ukrainian media, in which he expressed his position, declared in the video appeal. Thus, he participated in the “Прямим Текстом” program titled “Mobilization and all worries related to it” on “ZIK” TV channel, which aired on 22 January, where he confirmed his position concerning the public urging to refuse the mobilization and pointed out that he posted the examples of applications to refuse the mobilization on his internet pages for their dissemination and use among the compatriots. On 22 January Kotsaba directly participated via Skype in the “Время покажет” program of the Russian “Первый Канал” TV channel, where he commented on his video appeal, confirming the urging to refuse the mobilization, and characterized the events transpiring ion the East of the country, as a civil war.

On 23 January Kotsaba already arrived in Moscow, where on that day he participated in the studio of “Россия 1” channel in live program “Специальный Корреспондент”. Some participants of the program accused Ukrainian authorities of the deliberate destruction of the Ukrainian population during the hostilities and denied the presence of Russian military units in Donbas. On 25 January in Ivano-Frankivsk Kotsaba participated via Skype in the TV program “Центральное телевидение” of the Russian TV channel “НТВ”, in which he commented on his video appeal “I refuse the mobilization” and stressed to the potential mobilized persons that they may have to kill the same Ukrainians living in another part of the country.

While in Moscow, Kotsaba agreed with a journalist of the Russian TV channel “НТВ” on the preparation of reports with the participation of the residents of Cheremkhiv village of Kolomiysky district of Ivano-Frankivsk oblast, who express their opinion against the mobilization and do not wish to go to war, as well as the reports of a similar nature in Ivano-Frankivsk. It was agreed that he would seemingly prepare the reports of the protest nature on his own initiative, and not after the order of a Russian channel, and he would post them on YouTube providing the permission to use them to unrestricted circle of persons. Kotsaba was to receive monetary reward for this work. On 1 February Kotsaba was filming the reports in Cheremkhiv and Korshiv villages of Kolomiysky district, and then uploaded them to YouTube.

On 7 January Kotsaba was detained, he was notified of suspicion of treason and obstruction of legal activity of the Armed Forces of Ukraine and other military formations (pt. 1 of Article 111 and pt. 1 of Article 114-1 of CC of Ukraine).

Earlier, in May-June 2014, Kotsaba as a special correspondent of “112” channel visited the ATO zone, where he filmed many videos about the voluntary battalion “Aydar” and the war. He visited the self-proclaimed “LPR” once during the week, having received accreditation from the press service of the Luhansk Regional State Administration. He filmed and posted on Youtube on 20 June the video called “Ruslan Kotsaba from Luhansk Regional State Administration”, in which he accused Ukrainian military of murder of peaceful population near Luhansk RSA and called the militants of the “LPR” and “DPR” “military” and “heroes”. In Kotsaba’s opinion, the occupation of Luhansk RSA was carried out by the local residents similarly as during the Revolution of Dignity the local residents occupied the premises of Ivano-Frankivsk Regional State Administration, however, the occupation of RSA in Ivano-Frankivsk was for some reason called “extreme measures of revolutionary and patriotic attitudes of the residents”, which were later subject to amnesty, and the persons who occupied Luhansk RSA were called “militia members” and “criminals”.

After his return from ATO zone, in late June 2014, Kotsaba gave interview to the channel “112 Україна” and on 13 July 2014 to the Russian channel “Россия 24” concerning his stay in Luhansk, during which he again accused Ukrainian military of killing peaceful population, noted and praised the high discipline of the local militia men of “LPR” and their motivation, as well as denied the presence of Chechens among them.

On 12 May 2016 the sentence was declared. The court found Kotsaba not guilty of treason and acquitted him under Article 111 of CC of Ukraine for the lack of constituent elements of a crime. At the same time, the court found guilt under the Article 114-1 and sentenced Kotsaba to imprisonment for 3 years and 6 months, applying the Article 69 of CC of Ukraine, and calculated 1 day of Kotsaba’s stay in SIZO for 2 days of the sentence, therefore, of 3.5 years Kotsaba had one year left to serve.

In our opinion, Ruslan Kotsaba’s actions, undoubtedly deserve moral condemnation. His reports are one-sided and manipulative. Especially the statement that mostly people from Western Ukraine die in the East. It is hard to believe that he did not lie while denying the participation of Chechens in the hostilities on the side of the self-proclaimed “DPR” and “LPR”. Similarly, in January 2015 he could not be unaware of participation of the Russian conscripts in the hostilities in the East of Ukraine and the use of Russian weapons by the militants of the self-proclaimed republics, however, he kept silence when the participants of the TV programs in Moscow denied this in his presence. If, according to the standards of the fair journalism, he covered in good faith the events in the zone of the military conflict, the data concerning the participants of the hostilities and their weapons should have been well known to him. Thus, he acted as a propagandist deliberately twisting the information, i.e. having an evil intent  rather than a journalist.

However, instead of publically refuting his unreasonable statements in open talk, he was accused of serious crimes and imprisoned, since 8 February he was in SIZO. It lead to the criticism by the Western politics and civil organizations, such as, for example, Amnesty International, which called Kotsaba a prisoner of conscience, meaning a person who was imprisoned for expressing his own thoughts, although he did not commit any crime.

Stylistically, the prosecution of Ruslan Kotsaba is a typical political prosecution: groundless accusation of state treason, lengthy detention in SIZO. However, it is hard for us to agree with the qualification by “Amnesty International”. If the legislation of Ukraine had more refined forms of qualification of the actions of the journalists which had evil intent as a crime, Kotsaba would fully deserve such qualification.

Is it adequate to qualify Kotsaba’s actions as a crime under Article 114-1? The verdict looks convincing. However, the very fact of the presence of Article 114-1 in the Criminal Code of Ukraine is a problematic issue. At that moment we de-facto had an armed conflict in the South-East, de jure – anti-terrorist operation. If Ukraine had the state of martial law instead of obviously inadequate definition of actions of Ukrainian military and other military formations as ATO there would have been no need to introduce the concepts of “special period”, and the introduction of Article 114-1 to CC would not be necessary. And, with a great probability, Ruslan Kotsaba would not have urged the people to refuse mobilization. Because all his previous life proved that he was a patriot of Ukraine, as he maintained in the court. He is an active participant of the civil movement since 1988, an activist of “Memorial”, environmental organizations, a participant of all three Ukrainian revolutions – student hunger strike of 1990, Orange Revolution and the Revolution of Dignity. In our opinion, in spring 2014 he genuinely believed the war to be a civil and fratricidal one, but later he could not help but understand the main reason for that war: the wish of the administration of the Russian Federation to break the Ukrainian state, or, at least, to not let us live and develop normally. Kotsaba was failed by his constant wish to shock the public, his affection to provocation, and he did not notice himself turning into a stranger who insults the deceased. However, he did not feel this metamorphose and behaved provocatively, flaunting his definition as a prisoner of conscience. Although it is necessary to admit that the punishment in the form of lengthy detention is too cruel and inadequate to his actions, and according to the international standards he has to be defined a political prisoner: first, the motives of his criminal prosecution are political, second, the actions of the State bear the signs of violation of the right to freedom (Article 5 of the European Convention) and the freedom of expression (Article 10).

Article 5 is violated in Ukraine in almost every criminal proceedings, when a preventive measure in the form of detention is chosen, and Kotsaba’s case is not an exception. As for the Article 10, we would like to note the following. Generally speaking, the European Court believes the detention to be the extreme measure of punishment for a crime. The first part of Article 114-1 declares that “obstruction of the legal activity of Armed Forces of Ukraine and other military formations in the special period is punishable by imprisonment for the term between 5 and 8 years”. In our opinion, this norm does not meet the criteria of the European Court of Human Rights concerning the clarity and predictability of the law on the grounds of which the freedom of expression is restricted. In particular, it is hard for a journalist to foresee that he would be punished under that article for his professional activity, since the European Court consistently finds a violation of Article 10 of the Convention in the imprisonment of journalists for performing their professional duties, believing such intrusion in the freedom of expression to be out of proportion.

Thus, the State should stop criminal prosecution against the journalists with their detention for the things they write (say, film) when there are no grave consequences. As for Kotsaba – as a political prisoner, he should be released as soon as possible.

Such commentary to the sentence was published by us a week after it was declared. And on 14 July 2016 the panel of judges from Appellate Court of Ivano-Frankivsk oblast declared the ruling, which terminated the criminal proceedings under Article 114-1 of the CC of Ukraine for the lack of constituent elements of a crime in Kotsaba’s actions and released him from custody in the courtroom.

On 1 June 2017 the ruling of the Higher Specialized Court for civil and criminal cases partially upheld the prosecutors’ cassation, the decision of the appellate court was quashed on the procedural basis and a new trial in the appellate court was assigned. The cause was that “the appellate court unreasonably refused to grant the petition of the prosecution concerning the examination of the evidence during the hearing, including the audio record of the court hearing of the district court in the part concerning the questioning of the accused and all witnessesThe appellate court did not study the testimony of the witnesses directly and provided the opposite assessment of the statements than the one provided by the trial court».

Thus, the courts began examining the accusations under both articles of CC anew. More than 3.5 years passed, the legislation changed, now the courts are guided by the concept of “armed conflict” and not ATO, and the examination of the criminal proceedings against Ruslan Kotsaba is still ongoing. Now the case is being heard by Kolomiysky city district court of Ivano-Frankivsk oblast.

The case of Andriy Zakharchuk

Andriy Zakharchuk is a young Ukrainian journalist who as far back as in 2012, being 22 years old, began working in St. Petersburg in news agency “Невские Новости”, later – in Russian Federal News Agency. In January-February 2015 he visited Kyiv, Kharkiv, Odesa, Dnipropetrovsk, made reports and took many photos. After that he arrived to Mykolayiv, where he once again took many photos, in particular, of Ingulsky and walking bridges, shipyard named after 61 Communards and SE “Mykolayiv Armor Plant”, the employees of security service of the latter detained the journalist during the filming. Those two plants are strategic objects included in the State Concern “Ukroboronprom”.

On 10 February Zakharchuk was detained by SSU, he was accused of state treason and on the next day he was placed to a SIZO. The journalist’s laptop, tablet and camera were confiscated. The prosecutor notified that the journalist’s devices contained the correspondence which confirmed his affiliation with a Russian news agency. Zakharchuk was not hiding that.

The investigation accused the journalist of working for the aggressor state. It was stated that the Federal News Agency is a propaganda publication which distorts the facts about Ukraine, creates a mistaken opinion on the events in Ukraine and incites separatist sentiments among Ukrainians. So the suspicion which Zakharchuk was notified of on 11 February was “justified”.

In our opinion, on the contrary, the accusation is not convincing. The legislation does not prohibit to work for Russian media. Taking photos on the streets is not prohibited, either. The suspect himself stated that he did not send photos to Russia and was not going to do that. According to him, he did not know that it was not allowed to photograph the armor plant and Ingulsky bridge. The prosecution did not provide any fact of publication by Zakharchuk of the materials directed against Ukraine, his collection of information aimed against national security of Ukraine. There are hundreds of photos in the internet similar to the ones taken by Zakharchuk. Thus, it seems that the prosecution considers the mere fact of working for the Russian Federal News Agency a criminal act.

Literally in 10 days Zakharchuk agreed to participate in the exchange for the Ukrainian prisoners of war along with the militants, and thus on 21 February he was released from SIZO and left Ukraine. At the same time, the SSU officials later stated that his accusation was not lifted, his prevention measure was merely changed, and that he is allegedly hiding from justice. On 3 March in the interview to “Свобода” radio Zakharchuk stated: “They gave me a paper to sign, that I want to be exchanged. They said that I don’t have any other choice”. That the brand of a traitor was unacceptable for him and very unfortunate. And that the statements of SSU were ridiculous. “In order to include me in the exchange lists, there must be a signed amnesty, that all accusations are lifted. I have signed such application. The SSU employees brought me to Kramatorsk, where the exchange took place. It turns out, they helped me escape to Russia?

The case of Vasyl Muravytsky

On 1 August 2017 SSU detained a 36-year-old blogger and journalist from Zhytomyr, Vasyl Muravytsky, and searched his house. He was accused of preparation and dissemination of materials of anti-Ukrainian content instructed by news resource “Russia Today”. The chosen preventive measure was the detention. Muravytsky was accused of committing crimes under four articles of CC of Ukraine: pt. 1 of Article 111, pt. 2 of Article 110; pt. 2 of Article 161 (deliberate actions directed at inciting the ethnic, racial or religious enmity) and pt.1 of Article 258-3 (participation in a terrorist group or organization).

The notice of the SSU (unfortunately, it was removed from SSU’s site) stated that its employees have stopped the activity which threatened informational security of the state in Zhytomyr oblast. It was established that a journalist referred to as “information mercenary”, “between 2014 and October 2016 published biased propaganda publications under the guidance of the Russian news agencies”, receiving topics and desired contents by mail or by courier, and sometimes he was allowed to choose a topic. He allegedly received payment via the international online payment services. His materials were published on six web sites controlled by the Russian Federation and the groups acting on non-government-controlled territories of Ukraine. SSU states that in the first publication the author signed his real name, but subsequently resorted to only using his nickname. “Language and forensic psychological examinations of the texts confirmed their manipulative influence on the awareness of the readers and motivating the audience to take specific actions for infliction of harm of the sovereignty and independence of Ukraine”. According to SSU, the expertise found that semantic and linguistic content “also contained calls for the national enmity within Ukraine and between Ukraine and neighboring allied countries.

“Українські новини” published the notice of suspicion which was given to Muravytsky. He is suspected of preparation of the publications in which he negatively covered the activity of current state authorities and armed formations, and justified the legal nature and lawfulness of Russia’s annexation of the Crimea, creation of the terrorist organizations “Donetsk People’s Republic” and “Luhansk People’s Republic”. Furthermore, according to the investigation by SSU, Muravytsky expressed ideas on the need for illegal accession of certain regions of Ukraine to Poland and Romania.

International news agency “Russia Today” is funded by the state and is a part of the Russian propaganda machine which deliberately disseminates lies about the events in Ukraine (for example, about the tragic fire in Odesa on 2 May 2014 and hostilities in Donbas). But the mere fact of this does not make the agreement with the agency a proof of the state treason. That agreement cannot even be called illegal. It is still unclear whether the prosecution really has the proofs of the guilt.

The interviews with Muravytsky with Kremlin-supported site News Front could be easily found on YouTube YouTube. They are very controversial and they contain numerous manipulative and wholly unfair statements. But it is not enough to consider those publications the proofs of the crimes incriminated to Muravytsky. Concerning this criminal prosecution and its legal assessment it could be reiterated what was already said above concerning Kotsaba’s case: in our opinion, Muravytsky’s publications have a clear propaganda nature, they ignore and distort the facts, and it is made deliberately. But the reaction of the state in the form of lengthy detention and house arrest is disproportionate, the proofs of the state treason and other incriminated crimes are not visible. However, it is too early to draw conclusions, it is necessary to wait for the sentence. The trial is ongoing for more than three years now, and there is no end, which indicates the doubtful nature of the accusation.

It is not hard to see that the criminal prosecutions of Ukrainian and Russian political prisoners who maintain that Crimea is Ukraine and oppose Russia’s armed aggression, also contain the same accusations of the state treason. This mirroring indicates a certain similarity in the attitude of two states to their opponents.

Muravytsky’s detention caused numerous protests of the western human rights organizations protecting the freedom oif speech – “Reporters without borders”, New York Committee to Protect the Rights of Journalists and many others who demand Muravytsky’s release and ending the division of journalists into patriotic and non-patriotic. “Amnesty International” considered Muravytsky a prisoner of conscience.

On 27 June 2018 the court replaced the detention with round-the-clock house arrest, then gradually eased the house arrest regime, and on 2 July 2020 replaced house arrest with personal undertaking.

The case of Kyrylo Vyshynsky

Since 2014 Kyrylo Vyshynsky, a journalist, headed the agency “РИА Новости – Украина”, which had been registered as an independent legal entity.

On 15 May 2018 the SSU employees searched the office of «Риа Новости» and Vyshynsky’s flat. During the search they found the passport of the resident of RF which was handed to Vyshynsky in 2015. They also found the Russian state awards, including two orders and medals. Kyrylo was handed notice of suspicion under Article 111 of the Criminal Code. On 16 May 2018 Kyrylo Vyshynsky was brought to Kherson, where the court chose the preventive measure for him in the form of detention.

As the Wikipedia states, in spring 2014 Vyshynsky worked in Crimea, where he and the journalists subordinate to him produced the materials which justified the temporary annexation of Crimea by Russia. For this activity Vyshynsky by a closed decree of the President of Russia was awarded an order “For the Return of Crimea”. He was also awarded a Russian order “For services to the Fatherland” for the so-called “objective coverage of the events in Crimea”. According to SSU, after returning to Kyiv Vyshynsky with several other journalists deployed active work on the information support for the terrorist organizations “LPR” and “DPR”. Each month to continue such activity Vyshynsky received EUR 53 000, in total SSU estimates Vyshynsky’s monthly funding by RF as EUR 100 000. The costs came from the territory of Serbia, and there – from the RF. Vyshynsky registered several legal entities for the transfer of costs and for masking of their Russian source.

The publication “Detector Media” describes the articles by Vyshynsky the following way: “There are several materials by Vyshynsky co-authored by Zakhar Vinogradov (ex-head of «РИА Новости Украина», from Odesa) on «РИА Новости» site for 2014. In August sketches from Donetsk they were excited by the militants, calling them “amazing rebels”, which are ready to “without fuss and unnecessary emotions accept a dignified death of the defender of their homestead”. The authors masterfully knitted into their text the romantic images of the leaders of “DPR”, Oleksandr Boroday and Olexandr Zakharchenko, and even the skies over Donbas they saw as being “Novorussian” and not Ukrainian. On the same year Vynogradov and Vyshynsky legitimized and advertised the odious persons through interviews. They record the conversation with the “DPR”-appointed “mayor of Makiivka”, in which they praise his managerial skills. Consequently that duo of the authors will publish the conversations with Igor Guzhva, who is now hiding from Ukrainian court in Austria, and Leonyd Kozhara – an ex-Regional, Minister of the Ministry of Foreign Affairs of Ukraine under Yanukovych. The headline for the latter interview can characterize the  works by Vynogradov-Vyshynsky: “To be enemies with Russia is absurd”.  In 2017 SSU prohibited  Zakhar Vynogradov from entering Ukraine“.

The trial in Vyshynsky’s case started on 4 April. According to Ukrinform, the prosecution accused him of posting 72 articles of “anti-Ukrainian nature” in 2014-2018. According to the prosecution, those materials contained “unreliable, subjective, biased information concerning Ukraine, Ukrainian authorities and army and refuted Russian aggression against Ukraine. The prosecution also believes that those materials “justified possible withdrawal of some regions of Donetsk and Luhansk oblasts from Ukraine”.

Vyshynsky objected: “For more than four years of me heading the editorial house of «РИА НовостиУкраина» there was no court claim, demand to refute the provided information or claims about the lack of objectivity. Therefore, I consider unproven the accusations by SSUof the fact that since the first day of my work as the editor-in-chief, since March 2014, I systematically and purposefully published on the site the information which was unreliable or lacked objectivity – there is no evidence whatsoever”.

There is no detailed information about what articles were in question. Although Vyshynsky’s lawyer, Andriy Domansky, stated that it did not concerned the materials by his client, but by other authors that were published in the “Opinion” section.

In July there was an idea to exchange Vyshynsky for Oleg Sentsov. At first Vyshynsky refused the exchange, believing that it would mean pleading guilty, and he pleads innocence, but later he agreed. On 28 August 2019 the court replaced the preventive measure with personal undertaking, and on 7 September Vyshynsky left for Moscow within the exchange procedure.

Conclusions

Unfortunately, those cases show that any critical statements concerning the actions of Ukrainian authorities can be considered a state treason in SSU. This will undoubtedly have a cooling effect on journalism and will contribute to intensification of self-censorship. We have to state that the balance between the interests of the national security and observance of human rights is decided by Ukrainian authorities in the favor of the national security. And this only benefits the Russian aggressor. The state is reverting to the Soviet stylistics when it persecutes the journalists in such a way. It turns out that during the war criticizing the government is prohibited. It is not allowed to write for the Russian editions, because you are at risk of being called a criminal. Although it should be clear that it is necessary to prove Ukrainian position in Russia, using all adequate means.

The legislation does not prohibit the cooperation with Russian media. However, it is necessary to keep to the standards of the journalism, and not be a propagandist and write ordered materials. However, the example of the criminal persecution of Zakharchuk proves that there are no guarantees against accusation of the state treason. The question is – where in Ukraine ends the freedom of expression and starts the state treason? The boundary between them is not defined. Therefore it is not surprising that two accused persons were exchanged, and the examination of cases of two more accused lasts for more than 3.5 years.

Drawing this boundary is a very difficult task. Part of society is positive about the persecution of Ukrainian journalists who in fact turned into propagandists and promote the ideas of the aggressor state in Ukraine. Indeed, it is hard to tolerate such propaganda in the conditions of the armed conflict. However, the accusations of state treason are inadequate legal means. In our opinion, it is appropriate to introduce in the Ukrainian legislation the concept of “evil intent” and the procedures that establish its presence similar to the ones existing in USA, keeping in mind at the same time the position of the European Court of Human Rights concerning the proportionality of the restriction of the freedom of expression.

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