WHO NEXT?
23.05.2000
If I were asked which events of 1998 I consider principal, I would answer that it was a year of repressions against opposition press. There are many examples, but I will list the loudest: the publication of ’Pravda Ukrainy’ is suspended and Aleksandr Gorobets, the editor-in-chief, is under investigation on the charge of rape, ’Vseukrainskiye vedomosti’ stopped to exist, the court ruled to close ’Politika’ and issued the warrant to arrest Oleg Liashko, the editor-in-chief, since he did not come to the court that considered the case of libel and misuse of position on the side of the editor. Let us recollect what has happened with ’Politika’ and its editor-in-chief.
If I were asked which events of 1998 I consider principal, I would answer that it was a year of repressions against opposition press. There are many examples, but I will list the loudest: the publication of ’Pravda Ukrainy’ is suspended and Aleksandr Gorobets, the editor-in-chief, is under investigation on the charge of rape, ’Vseukrainskiye vedomosti’ stopped to exist, the court ruled to close ’Politika’ and issued the warrant to arrest Oleg Liashko, the editor-in-chief, since he did not come to the court that considered the case of libel and misuse of position on the side of the editor. Let us recollect what has happened with ’Politika’ and its editor-in-chief.
QUESTIONS WITHOUT ANSWERS
Publication of the newspaper was stopped on 6 October by ruling of Pechersky district court of Kyiv according to a claim of the Deputy General Prosecutor related to the publication of Liashko’s article ’Spy novel-2’, which contained information forming a state secret. Since Article 46 of the Ukrainian law ’On information’ prohibits spreading such information and since Part 1 of Article 3 of the law ’On printed mass media (press) in Ukraine’ implies that mass media may not publish such information, Nikolay Zamkovenko, the chairman of Pechersky district court, satisfied the claim.
However, Part 5 of Article 42 of the law ’On press’ releases the editorial board and the journalist from the responsibility of divulging secrets guarded by law, if the information was obtained in a legal way. Before it, in January 1998, the USS Investigation Directorate notified Liashko that the Directorate would not start the criminal case for divulging a state secret since they did not find corpus delicti in his actions. Why did not the court pay attention to this decision?
It is unbelievable, but a fact: journalists learned that their newspaper was closed only on 8 December, 2 months after the court decision. How could the court consider a claim on closing the newspaper without representatives of the latter? How could it be that the court did not inform the respondent of the decision to enable handing a cassation? This case was clearly not objective: in this connection it is meaningless to discuss equality of the sides in the trial, competitiveness and realization of the right of defense.
In the court decision it is said that the respondent did not come to the court for the second time, althogh he was duly noted of the day of the trial, so the court found possible to consider the case ’knowing the last location of the respondent’. What prevented judge Zamkovenko to send subpoena to the address given in the newspaper output data? Maybe the judge just wanted to avoid publicity?
Now Kyiv city court considers a complaint to oversight the decision of Pechersky district court. We hope to get convincing answers to the questions mentioned. And now we shall make A SLIGHT DEVIATION FROM THE TOPIC
One must note that in this story the USS displayed civility and professionalism. When the man who gave the materials for publishing articles in ’Politika’ (the former sergeant Aleksandr Ishcheykin) was found he was not incarcerated, and the court sentenced him to three years conditionally and 680 grivnas fine according to Article 67 of the Penal Code (for divulging information making a state secret). If this case happened ten years ago, then the verdict would be much more cruel. As far as we know, the USS started criminal cases on divulging state secrets in mass media only twice. The first case was when Nikolay Savelyev, a journalist from Lviv, several years ago published an article in ’Moloda Galichina’, where he mocked at the instruction to select stool-pigeons only from ’nationally conscious’ citizens; then the newspaper was not closed and the journalist was not punished. MORE QUESTIONS
And now the warrant for Liashko’s arrest has been issued. Why shall he be kept under custody? During operative and detective actions he signed his promise not to leave Kyiv, now the ODAs have finished and the case is passed to the same judge Zamkovenko in Pechersky district court. Because Liashko did not come to the court session on 9 and 14 December, the judge sanctioned his detainment, Liashko says that on 9 December he was ill, and the subpoena of 14 December he did not receive. The next court session will be held on 26 January, and it is not clear why he must be kept in the preliminary prison for a month.
By the way, another circumstance is not clear: why his case will be considered in Pechersky district court, when the alleged place of crime, of writing libel articles, is the editorial board, which is located in Moskovsky district. THE CORE OF THE MATTER
The accusation of Liashko reads that he, misusing his editor’s position, published in his newspaper the articles ’Durdinetsism’ and ’Spare barbed wire, citizen Durdinets’, in which he defamed V.V. Durdinets who was then the acting Prime-Minister of Ukraine; besides he published the articles ’Conman and general’ and ’Conman and general appeared to be kinsmen’, in which he defamed Ivan Grigorenko, the head of a region directorate of the Ministry of Interior, and Aleksandr Sirik, a former militiaman from Odessa. All the three are regarded as victims of libel.
I do not want to quote from these articles. I do not like their style: it is insolent and mocking. I believe that a journalist must not insult people about whom he writes. Taste, tact and a feeling of measure are necessary features of a professional journalist. But this is my personal opinion of a reader. Maybe another reader will like the gutter style and yellow press. However, in any case, a journalist must prove the veracity of the facts he writes about: this is another necessary feature of a professional. But opinions, assessments and attitudes must not be proved. I believe that an opinion cannot be a libel. The court will have to prove that Liashko knew that his information was false, that he lied with premeditation. Liashko’s articles make a mixture of assessments and facts, and it seems to me that the author was absolutely sure that his facts were true. This means that he can be accused of error and not of libel. As to the accusation of misuse of editor’s position, it looks quite incorrect: when a journalist, in this case an editor-in-chief, fulfils his professional duty, it cannot be interpreted las misuse of the position.
Suppose that Liashko will be sentenced (the maximal sanction of Part 3, Article 125 is five years of incarceration) and then, having exhausted all the means of the judicial protection in Ukraine, he will complain to the European Court in Strasbourg that our state violated Article 10 of the European Convention on human rights, the article that protects the freedom of speech, opinions and expression. PROSPECTS OF THE CASE LIASHKO VS. UKRAINE
Even a cursory glance at rulings of the European Court concerning complaints of violating Article 10 of the Convention shows that the attitude of the European Court is substantially different from that in our country. More than once the Court pointed out that Article 10 protects publication of information and ideas which are provocative and shocking, in the equal measure as doubtless information: ’The freedom of expression is one of the fundamentals of a democratic society and one of the inalienable conditions of its development... This concerns not only information and ideas that are perceived benevolently and insult nobody, or neutral, but also insulting, shocking and provocative. This is requested by pluralism, patience and width of opinion, without which a democratic society cannot exist’ (this and all subsequent quotations are taken from the Court decisions). In the case Lingens vs. Austria the Court ruled that ’the limits of the admissible criticism are wider if its object is not a private person, but a politician’, and that ’it is necessary to distinguish between facts and assessments’, and ’if the veracity of facts can be demonstrated, then the veracity of assessments is unprovable’. In the case of Torgeirson vs. Iceland the Court broadened the admissible limits of criticism from public politicians to any state officials. In the case Castells vs. Spain the Court ruled out that ’the limits of admissible criticism addressed at the government are wider than addressed to a private person and even to a political figure’. WHAT WILL FOLLOW?
Consideration of decisions of the European Court, when compared to our routine, shows how far are we from a civilized press and from a civilized attitude to press. Not in any European country that call itself democratic there was a single case in the last decades when a man was incarcerated for insulting or slandering the authorities. As far as I remember, only one time, five years ago, a journalist Aleksandr Volosov got behind the bars for fulfilling his professional duties, by the way in the very similar situation. He was not incarcerated for long, since the Supreme Court protested, and the case was reconsidered. Will our law-enforcing agencies make a martyr out of the editor of a scandalous opposition newspaper? If so, then it would stand to reason to ask the question put in the title of this article.
I would be glad to be mistaken!
QUESTIONS WITHOUT ANSWERS
Publication of the newspaper was stopped on 6 October by ruling of Pechersky district court of Kyiv according to a claim of the Deputy General Prosecutor related to the publication of Liashko’s article ’Spy novel-2’, which contained information forming a state secret. Since Article 46 of the Ukrainian law ’On information’ prohibits spreading such information and since Part 1 of Article 3 of the law ’On printed mass media (press) in Ukraine’ implies that mass media may not publish such information, Nikolay Zamkovenko, the chairman of Pechersky district court, satisfied the claim.
However, Part 5 of Article 42 of the law ’On press’ releases the editorial board and the journalist from the responsibility of divulging secrets guarded by law, if the information was obtained in a legal way. Before it, in January 1998, the USS Investigation Directorate notified Liashko that the Directorate would not start the criminal case for divulging a state secret since they did not find corpus delicti in his actions. Why did not the court pay attention to this decision?
It is unbelievable, but a fact: journalists learned that their newspaper was closed only on 8 December, 2 months after the court decision. How could the court consider a claim on closing the newspaper without representatives of the latter? How could it be that the court did not inform the respondent of the decision to enable handing a cassation? This case was clearly not objective: in this connection it is meaningless to discuss equality of the sides in the trial, competitiveness and realization of the right of defense.
In the court decision it is said that the respondent did not come to the court for the second time, althogh he was duly noted of the day of the trial, so the court found possible to consider the case ’knowing the last location of the respondent’. What prevented judge Zamkovenko to send subpoena to the address given in the newspaper output data? Maybe the judge just wanted to avoid publicity?
Now Kyiv city court considers a complaint to oversight the decision of Pechersky district court. We hope to get convincing answers to the questions mentioned. And now we shall make A SLIGHT DEVIATION FROM THE TOPIC
One must note that in this story the USS displayed civility and professionalism. When the man who gave the materials for publishing articles in ’Politika’ (the former sergeant Aleksandr Ishcheykin) was found he was not incarcerated, and the court sentenced him to three years conditionally and 680 grivnas fine according to Article 67 of the Penal Code (for divulging information making a state secret). If this case happened ten years ago, then the verdict would be much more cruel. As far as we know, the USS started criminal cases on divulging state secrets in mass media only twice. The first case was when Nikolay Savelyev, a journalist from Lviv, several years ago published an article in ’Moloda Galichina’, where he mocked at the instruction to select stool-pigeons only from ’nationally conscious’ citizens; then the newspaper was not closed and the journalist was not punished. MORE QUESTIONS
And now the warrant for Liashko’s arrest has been issued. Why shall he be kept under custody? During operative and detective actions he signed his promise not to leave Kyiv, now the ODAs have finished and the case is passed to the same judge Zamkovenko in Pechersky district court. Because Liashko did not come to the court session on 9 and 14 December, the judge sanctioned his detainment, Liashko says that on 9 December he was ill, and the subpoena of 14 December he did not receive. The next court session will be held on 26 January, and it is not clear why he must be kept in the preliminary prison for a month.
By the way, another circumstance is not clear: why his case will be considered in Pechersky district court, when the alleged place of crime, of writing libel articles, is the editorial board, which is located in Moskovsky district. THE CORE OF THE MATTER
The accusation of Liashko reads that he, misusing his editor’s position, published in his newspaper the articles ’Durdinetsism’ and ’Spare barbed wire, citizen Durdinets’, in which he defamed V.V. Durdinets who was then the acting Prime-Minister of Ukraine; besides he published the articles ’Conman and general’ and ’Conman and general appeared to be kinsmen’, in which he defamed Ivan Grigorenko, the head of a region directorate of the Ministry of Interior, and Aleksandr Sirik, a former militiaman from Odessa. All the three are regarded as victims of libel.
I do not want to quote from these articles. I do not like their style: it is insolent and mocking. I believe that a journalist must not insult people about whom he writes. Taste, tact and a feeling of measure are necessary features of a professional journalist. But this is my personal opinion of a reader. Maybe another reader will like the gutter style and yellow press. However, in any case, a journalist must prove the veracity of the facts he writes about: this is another necessary feature of a professional. But opinions, assessments and attitudes must not be proved. I believe that an opinion cannot be a libel. The court will have to prove that Liashko knew that his information was false, that he lied with premeditation. Liashko’s articles make a mixture of assessments and facts, and it seems to me that the author was absolutely sure that his facts were true. This means that he can be accused of error and not of libel. As to the accusation of misuse of editor’s position, it looks quite incorrect: when a journalist, in this case an editor-in-chief, fulfils his professional duty, it cannot be interpreted las misuse of the position.
Suppose that Liashko will be sentenced (the maximal sanction of Part 3, Article 125 is five years of incarceration) and then, having exhausted all the means of the judicial protection in Ukraine, he will complain to the European Court in Strasbourg that our state violated Article 10 of the European Convention on human rights, the article that protects the freedom of speech, opinions and expression. PROSPECTS OF THE CASE LIASHKO VS. UKRAINE
Even a cursory glance at rulings of the European Court concerning complaints of violating Article 10 of the Convention shows that the attitude of the European Court is substantially different from that in our country. More than once the Court pointed out that Article 10 protects publication of information and ideas which are provocative and shocking, in the equal measure as doubtless information: ’The freedom of expression is one of the fundamentals of a democratic society and one of the inalienable conditions of its development... This concerns not only information and ideas that are perceived benevolently and insult nobody, or neutral, but also insulting, shocking and provocative. This is requested by pluralism, patience and width of opinion, without which a democratic society cannot exist’ (this and all subsequent quotations are taken from the Court decisions). In the case Lingens vs. Austria the Court ruled that ’the limits of the admissible criticism are wider if its object is not a private person, but a politician’, and that ’it is necessary to distinguish between facts and assessments’, and ’if the veracity of facts can be demonstrated, then the veracity of assessments is unprovable’. In the case of Torgeirson vs. Iceland the Court broadened the admissible limits of criticism from public politicians to any state officials. In the case Castells vs. Spain the Court ruled out that ’the limits of admissible criticism addressed at the government are wider than addressed to a private person and even to a political figure’. WHAT WILL FOLLOW?
Consideration of decisions of the European Court, when compared to our routine, shows how far are we from a civilized press and from a civilized attitude to press. Not in any European country that call itself democratic there was a single case in the last decades when a man was incarcerated for insulting or slandering the authorities. As far as I remember, only one time, five years ago, a journalist Aleksandr Volosov got behind the bars for fulfilling his professional duties, by the way in the very similar situation. He was not incarcerated for long, since the Supreme Court protested, and the case was reconsidered. Will our law-enforcing agencies make a martyr out of the editor of a scandalous opposition newspaper? If so, then it would stand to reason to ask the question put in the title of this article.
I would be glad to be mistaken!